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THE  CONTROL  OF 
AMERICAN  FOREIGN  RELATIONS 


THE    MACMILLAN    COMPANY 

HKW  YORK    •    BOSTON    •    CHICAGO    •    DAIXAS 
ATI-ANTA    •    SAN  FRANCISCO 

MACMILLAN  &  CO..  Limited 

LONDON    •    BOMBAY    •    CALCUTTA 
MELBOURNE 

THB  MACMILLAN  CO.  OP  CANADA.  Ltd. 

TORONTO 


/  /    1 


THE  CONTROL  OF 
AMERICAN  FOREIGN  RELATIONS 


BY 

QUINCY  WRIGHT,  Ph.D. 

PROFESSOR  OF  INTERNATIONAL  LAW 
IN  THE   UNIVERSITY  OP  MINNESOTA 


"The  qualities  indispensable  in  the  management  of  foreign  negotia- 
tions point  out  the  Executive  as  the  most  fit  agent  in  those 
transactions  ;  while  the  vast  importance  of  the  trust,  and  the  operation 
of  treaties  as  laws,  plead  strongly  for  the  participation  of  the  whole 
era  portion  of  the  legislative  body  in  the  office  of  making  them." 

—  The  Federalist 


NEW  YORK 
THE  MACMILLAN  COMPANY 
1923 


PRINTED   IN  THE  UNITED   STATES   OF  AMERICA 


Copyright  1922 
By  The  American  Philosophical  Society 


Copyright  I922 
By  The  Macmillan  Company 


Set  up  and  electrotyped.     Published  August,  1922 


To 
Louise  Leonard 

Xwpis  7ap  TavTYis  (alrlas)  oUre  TU!i>  Kara  Myov  oijTe  twv  irapa  \6yov  eivai  vokovvtuv 
ovbkv  ol6v  re  avvreXfffdrjvat.. — Polybius. 


The  Crowned  Essay 

for  which  the  Henry  M.  Phillips  Prize  of 

two  thousand  dollars  was  awarded  on  April  23,  1921, 

by  the  American  Philosophical  Society. 


PREFACE.  ^ 


For  some  years  a  small  group  of  the  writer's  colleagues  at  the 
University  of  Minnesota  have  dined  together  periodically  in  order  to 
listen  to  discussions  or  papers  in  the  widely  different  fields  of  scholar- 
ship which  the  group  represents.  In  the  winter  of  1920,  with  the 
Treaty  of  Versailles  still  unratified  and  unrejected  hy  the  Senate,  the 
writer  discussed  before  this  group  a  subject  then  in  the  front  of  every- 
one's mind — the  American  system  or  lack  of  system  for  controlling 
foreign  relations.  The  same  material  presented  in  a  paper  read  be- 
fore the  American  Political  Science  Association,  December,  1920,  was 
published  in  the  American  Political  Science  Review  of  February, 
192 1,  and  reprinted  in  Spanish  in  Inter- America,  November,  192 1. 

The  writer  utilized  his  investigations  in  connection  with  this  brief 
article  to  prepare  an  essay  in  accordance  with  the  regulations  govern- 
ing the  award  of  the  Henry  M.  Phillips  Prize  offered  by  the  American 
Philosophical  Society  in  1921  for  an  essay  on  "The  Control  of  the 
Foreign  Relations  of  the  United  States :  The  Relative  Rights,  Duties 
and  Responsibilities  of  the  President,  of  the  Senate  and  the  House, 
and  of  the  Judiciary,  in  Theory  and  in  Practice."  This  essay  has 
been  expanded  and  revised  up  to  January,  1922,  for  the  present 
publication. 

The  essay  seeks  to  draw  particular  attention  to  a  difficulty  in  the 
control  of  foreign  relations  found  in  every  government,  but  especially 
in  a  government  with  powers  defined  in  a  judicially  enforced  written 
constitution.  This  is  the  difficulty  which  arises  from  the  fact  that  the 
organs  conducting  foreign  relations  have  their  responsibilities  defined 
by  international  law,  while  their  powers  are  defined  by  constitutional 
law.  Since  the  sources  of  these  two  bodies  of  law  are  different,  a 
lack  of  coordination  between  the  powers  and  the  responsibilities  of 
these  organs  is  to  be  expected.  To  avoid  confusion  the  writer  has 
considered  the  subject  from  the  international  point  of  view  and  from 
the  constitutional  point  of  view  in  separate  parts  of  the  book,  even  at 

ix 


X  PREFACE. 

the  risk  of  some  repetition.     Part  II  is  devoted  to  the  former — parts 
III  and  IV  to  the  latter. 

Throughout  the  book  the  writer  has  tried  to  indicate  his  reasons 
for  thinking  that  the  difficulty  referred  to  can  be  solved  only  by  the 
development  of  and  adherence  to  constitutional  understandings,  sup- 
plementing the  law  of  the  constitution  and  indicating  how  the  organs 
entrusted  with  the  control  of  foreign  relations  ought  to  exercise  their 
discretionary  powers  to  avoid  friction.  Part  V  seeks  to  develop  this 
thought  systematically. 

Primary  use  has  been  made  of  the  sources :  court  reports ;  acts  of 
Congress ;  Treaties ;  Presidential  messages ;  diplomatic  correspondence 
and  Congressional  debates,  reports  and  documents,  particularly  the 
reports  of  the  Senate  Foreign  Relations  Committee.  The  classified 
extracts  from  this  material  in  Moore's  Digest  of  International  Law 
have  been  of  great  assistance.  The  unofficial  writings  of  American 
statesmen  have  been  utilized,  particularly  Cleveland's  Presidential 
Problems,  Roosevelt's  Autobiography,  Taft's  Our  Chief  Magistrate 
and  His  Powers,  Wilson's  Constitutional  Government  in  the  United 
States  and  Sutherland's  Constitutional  Powers  and  World  Aflfairs. 
Of  special  studies  in  the  field,  the  writer  feels  especially  indebted  to 
Corwin's  The  President's  Control  of  Foreign  Relations,  Crandall's 
Treaties,  Their  Making  and  Enforcement,  and  Hayden's  The  Senate 
and  Treaties.  Numerous  secondary  works  have  been  examined,  ref- 
erence to  which  is  made  in  the  footnotes.  The  writer  has  made  use 
of  his  own  articles  published  in  the  American  Journal  of  International 
Law,  the  American  Political  Science  Review,  The  Columbia  Law  Re- 
view, and  the  Minnesota  Law  Review.  He  thanks  the  publishers  of 
these  periodicals  for  their  courteous  consent  to  such  use.  Finally  he 
wishes  to  thank  his  colleague  and  friend,  Robert  E.  Cushman,  for 
many  helpful  suggestions  made  during  the  progress  of  the  work. 
For  the  plan  of  the  work,  for  the  conclusions,  for  the  errors  and 
omissions,  no  one  but  the  writer  is  responsible. 

QuiNCY  Wright. 

Minneapolis,  Minnesota 
May,  1922. 


ANALYTICAL  TABLE  OF  CONTENTS. 


PART  I. 

Chapter  I.     The  Nature  of  the  Foreign  Relations  Power 

1.  Difficulty  in  Developing  a  Legal  Theory  of  the  Subject 3 

2.  Dual  Position  of  the  Foreign  Relations  Power 4 

3.  The  International  Point  of  View 4 

4.  The  Constitutional  Point  of  View 6 

5.  Methods  of  Reconciling  These  Points  of  View 7 

6.  Relation  of  Law  and  Understandings 7 

7.  Constitutional  Understandings 8 

8.  International   Understandings 8 

PART  II. 

THE  POSITION  OF  THE  FOREIGN  RELATIONS  POWER  UNDER 
INTERNATIONAL   LAW. 

Chapter  II.     The  Representative  Organ  of  Government. 

9.  The  Nature  of  International  Law 13 

ID.  Independence   of   States 14 

11.  The  Representative  Authority  under  International  Law 15 

12.  The  President  is  the  Representative  Authority  in  the  United  States.  21 

Chapter  III.     Attributes  of  the  National  Representative 
Organ  Under  International  Law. 

A.  Sole  Agency  for  Foreign  Communication. 

13.  Foreign  Representatives  May  Officially  Communicate  with  the  Na- 

tion Only  Through  the  President  or  His  Representatives 28 

14.  National  Organs  of  Government  other  than  the   President  or  His 

Representatives  May  Not  Communicate 30 

15.  National  and  State  Laws  Subject  to  International  Cognizance 30 

16.  Legislative  Expressions  of  Opinion,  not  of  International  Cognizance.  33 

17.  Self-constituted  Missions,  Forbidden 34 

18.  Missions  of  de  facto  Government's,  Unofficially  Received 35 

B.  All  Acts  of  the  President  Subject  to  International  Cognisance. 

19.  Communications  of  the  President  to  Congress 35 

20.  President  Presumed  tO  Speak  for  the  Nation 36 

xi 


xii  ANALYTICAL  TABLE  OF  CONTENTS. 

Chapter  IV.     Conclusiveness  of  the  Acts  and  Utterances  of 
National   Organs   Under   International   Law. 

A.  With  Reference  to  the  Making  of  National  Decisions. 

21.  Acts   of  the    President 38 

22.  National  and  State  Statutes 40 

23.  Acts  of  Subordinates  to  the  President' 40 


B.  With  Reference  to  the  Making  of  International  Agreements. 

24.  Foreign  Nations   Presumed  to  Know  the   Constitution 41 

25.  Signature  under  Authority  of  the  Treaty  Power 41 

26.  Signature  under  Authority  of  the  President 44 

27.  Reservations  Expressly  Consented  to 45 

28.  Reservations  Tacitly  Consented  to 48 

29.  Exchange  of  Ratifications  under  Authority  of  the  President 52 

30.  Treaty  Provisions  ultra  vires  from  Lack  of  Original  Authority 53 

31.  Treaty    Provisions    ultra   vires    from    Operation    of    Constitutional 

Limitations    55 

S2.  Treaty  Made  Under  Necessity 57 


C.  With  Reference  to  the  Meeting  of  International  Responsibilities. 

33.  United  States  Bound  by  International  Law  and  Treaties 58 

34.  Decisions  by  the  President 59 

35.  Decisions  by  Subordinates  to  the  President 60 

36.  Decisions  of  International  Organs  Authorized  by  the  President 61 

37.  Meeting  Responsibilities  Distinguished  from  Making  Agreements 62 

38.  Interpretation  of  Treaties 63 

39.  Understandings    do    not    Require    Forbearance    in    Pressing    Inter- 

national Claims 66 


PART  III 

CONSTITUTIONAL  LIMITATIONS  UPON  THE  FOREIGN 
RELATIONS  POWER. 

Chapter  V.    Limitations  upon  State  Powers. 

40.  Position  of  the  Foreign  Relations  Power  under  Constitutional  Law.  71 

41.  Relation  Between  State  and  National  Powers 72 

42.  Constitutional  Prohibitions  of  State  Power 73 

43.  Action  of  National  Organs  Limiting  State   Powers 74 


ANALYTICAL  TABLE  OF  CONTENTS.  xiii 

Chapter  VI.     Limitations  upon  National  Powers:  Private 
Rights  and  States'  Rights. 

A.  Private  Rights. 

44.  Nature  of  Prohibitions 76 

45.  Effect  upon  Power  to  Meet  International  Responsibilities 78 

46.  Effect  upon  Power  to  Make  International  Agreements 80 

47.  Effect  upon  Power  to  Make  Decisions  on  National  Policy 82 

B.  States'  Rights. 

48.  Nature  of  Prohibition 86 

49.  Effect  upon  Power  to  Meet  International  Responsibilities 87 

50.  Effect  upon  Power  to  Make  International  Agreements 88 

51.  Effect  upon  Power  to  Make  Decisions  on  National  Policy 93 

Chapter  VII.     Limitations  upon  National  Powers  :  The  Sep- 
aration of  Powers. 

52.  Nature  of  the  Theory 95 

53.  Protection  of  Independence  of  Departments 96 

54.  Protection  of  Delegated  Powers  of  Departments 97 

55.  Prohibition  upon  Exercise  of  Uncharacteristic  Powers  by  any  De- 

partment         98 

A.  Effect  on  the  Power  to  Meet  International  Responsibilities. 

56.  Government  as  a  Whole  Competent  to  Meet  Responsibilities 99 

57.  Power  of  President  and  Courts  to  Meet  Responsibilities 100 

B.  Effect  on  the  Power  to  Make  International  Agreements. 

58.  Limitations  upon  the  Government  as  a  Whole loi 

59.  Limitations  Derived  from  Powers  of  Congress loi 

60.  The  Delegation  of  Legislative  Power 103 

61.  Congressional   Delegation  of  Power  to   Make  International  Agree- 

ments      105 

62.  Treaty  Delegation  of  Power  to  National  Organs 106 

63.  Treaty  Delegation  of  Power  to  International  Organs no 

64.  Limitations  Derived  from  Powers  of  the  Judiciary 115 

65.  Limitations  Derived   from   Powers  of  the   President 119 

C.  Effect  on  the  Power  to  Make  National  Decisions. 

66.  Alleged  Encroachments 120 

Chapter  VIII.     Conclusion  on  Constitutional  Limitations. 

67.  Traditional  Statements  of  Limitations  upon  the  Treaty-power 121 

68.  Most  Limitations   Unimportant  in   Practice 124 

69.  Important  Limitations  from  Separation  of  Powers 125 


xiv  ANALYTICAL  TABLE  OF  CONTENTS. 

PART    IV. 

THE  POWER  TO  CONDUCT  FOREIGN  RELATIONS  UNDER  THE 

CONSTITUTION. 

Chapter  IX.    The  Position  of  the  Foreign  Relations  Power  in 
THE  Constitutional  System. 

A.  Source  of  National  Powers. 

70.  Distribution  of  Powers  between  States  and  National  Government...  129 

71.  Theory   of   Sovereign    Powers 130 

72.  Theory  of  National  Sovereignty  in  Foreign  Relations 131 

y^.  Theory  of  Resultant  Powers 132 

B.  Essential  Nature  of  the  Foreign  Relations  Power. 

74.  Controversy  as  to  Nature  of  Foreign  Relations  Power 134 

75.  Foreign  Relations  Power  not  Essentially  Judicial 135 

76.  Theory  of  Essentially   Executive   Nature:   Early  Opinion 135 

77.  Essentially    Executive    Nature :    Practice 136 

78.  Essentially  Executive  Nature :  Recent  Opinion 136 

79.  Theory   of  Essentially   Legislative    Nature:    Early   Opinion 137 

80.  Essentially  Legislative  Nature :  Practice 139 

81.  Essentially  Legislative  Nature :  Recent  Opinion 139 

82.  Theory  of  a  Fourth   Department   Different   from   Either  Executive 

or    Legislative 140 

83.  A  Fourth  Department :  Opinion  of  Theoretical  Writers 141 

84.  A  Fourth  Department:  British  and  Colonial  Precedent's 143 

85.  A  Fourth  Department:  Opinion  of  the  Constitutional  Fathers 145 

86.  A  Fourth  Department :  Functional  Classification 148 

87.  A  Fourth  Department :   Practice 148 

88.  The  Foreign  Relations  Department 150 

Chapter  X.    The  Power  to  Meet  International  Responsi- 
bilities. 

8g.  The  Law  of  International  Responsibility 151 

90.  State  Power  to  Meet  International  Responsibilities 153 

91.  National  Power  to  Meet  International  Responsibilities 154 

92.  Theory  of   Inherent   Executive   Power   to   Meet   International   Re- 

sponsibilities      155 

93.  President's  Duty  to  Execute  the  Laws  157 

94.  Power  of  the  Courts  to  Meet  International  Responsibilities 158 

95.  Power  of  Congress  to  Meet  International  Responsibilities 159 

96.  Power  to  Meet  International  Responsibilities  by  Treaty 160 


ANALYTICAL  TABLE  OF  CONTENTS.  xv 

Chapter  XI.    The  Power  to  Meet  International  Responsibili- 
ties Through  the  Observance  of  International  Law, 

97.  Conditions  Favoring  the  Observance  of  International  Law 161 

98.  Observance  of  International  Law  by  the  States 161 

99.  Observance  of  International  Law  by  the  Constitution 162 

100.  Observance  of  International  Law  by  Congress 162 

loi.  Checks   upon   Congressional   Disregard   of  International   Law 164 

102.  Observance  of  International  Law  by  the  Treaty-making  Power....    166 

103.  Observance  of  International  Law  by  the  President' l66  — 

104.  Observance  of  International  Law  by  Military  and  Civil  Services....    167 

105.  Observance  of  International  Law  by  the  Courts 170     / 

106.  Courts  Apply  International  Law  and  Treaties  as  Part  of  the  Law 

of   the    Land 171 

107.  This   Principle  not  Applicable  to   Political  Questions 172 

108.  This  Principle  not  Applicable  to  Cases  Covered  by  Written  Law...    174 

Chapter  XII.    The  Power  to  Meet  International  Responsibili- 
ties Through  the  Enforcement  of  International  Law. 

109.  Due    Diligence 176 

no.  Enforcement  by  the  States 177 

111.  Enforcement  under  the  National  Constitution 179 

A.  Enforcement  by  Legislative  Action. 

112.  Congressional  Resolutions  Before  the  Constitution 179 

113.  Offenses.  Against  Persons  Protected  by  International  Law 180 

114.  Offenses  Committed  on  the  High  Seas 180 

115.  Offenses  Against  Neutrality 181 

116.  Offenses  Against  Foreign  Governments 182 

117.  Offenses    Relating   to   International   Boundaries 183 

118.  Offenses  Against  Treaties 184 

1 19.  General    Empowering    Statutes 186 

120.  Sufficiency  of  Existing  Legislation  to  Protect  Resident  Aliens 186 

121.  Sufficiency  of  Existing  Legislation  for   Punishing  Offenses  Against 

Foreign  Governments 187 

122.  Sufficiency    of    Existing    Legislation    in    Aid    of    Foreign    Criminal 

Justice    1 89 

B.  Enforcement  by  Action  of  the  Treaty  Power. 

123.  Treaties  as  a  Basis  for  Executive  and  Judicial  Action 190 

124.  Treaties  as  a  Basis  for  Congressional  Action 191 

C.  Enforcement  by  the  President. 

125.  Enforcement  by  the  President 192 

126.  President's  Use  of  Military  Forces 193 

127.  President's  Direction  of  Administrative  Action 194 


xvi  ANALYTICAL  TABLE  OF  CONTENTS. 

D^.  Enforcement  by  the  Courts. 

128.  Early  Assumptions  of  Common  Law  Criminal  Jurisdiction  by  Fed- 

eral Courts 196 

129.  Federal  Courts  have  no  Common  Law  Jurisdiction 197 

130.  Federal  Courts  have  no  Criminal  Jurisdiction  from  Treaties  Alone.  198 

131.  Statutory   Criminal  Jurisdiction   of  Federal    Courts I99 

132.  Admiralty  Jurisdiction  of  Federal  Courts 200 

133.  Civil  Jurisdiction  of  Federal  Courts  in  Cases  Affecting  Aliens 201 

134.  Conclusion    203 

Chapter  XIII.    The  Power  to  Meet  International  Responsi- 
bilities Through  Performance  of  National  Obligations. 

135.  Nature  of  This  Responsibility 205 

136.  Performance  of  Obligations  by  the  States 205 

A.  The  Nature  of  National  Obligations. 

137.  Obligations  Founded  on  International  Agreement 206 

138.  Obligations  Founded  on  General  International  Law 208 

139.  The   Determination   of    Obligations 209 

140.  Justiciable  and  Non-justiciable  Questions 211 

141.  The  Obligation  of  Treaties  and  International  Law 212 

142.  Practice  in  Submitting  Disputes  to  Arbitration 214 

B.  Poivcr  to  Interpret  National  Obligations. 

143.  By  National  Political  Organs :  Congress 215 

144.  By  National  Political  Organs :  The  Senate .* 216 

145.  By  National  Political  Organs :  The  President 2i7^^ir 

146.  By  International  Political  Organs 218 

147.  By  National  Courts 220 

148.  By    International    Courts 222 

C.  Power  to  Perform  National  Obligations. 

149.  Appropriations    225 

150.  Cession  of  Territory 226 

151.  Guarantees  and  Use  of  Military  Force 227 

152.  Conclusion  of  Subsequent  Treaties 227 

153.  Participation    in    International    Organization 228 

154.  Commerce   and   Revenue  Laws 228 

155.  Formal  Amends  in  Reparation 229 

Chapter  XIV.     The  Power  to  Make  International  Agree- 
ments. 

156.  Power  of  the  States  to  Make  Agreements  with  Consent  of  Congress.  ?30 

157.  Power  of  the  States  to  Make  Agreements  Independently 231 

158.  Power  of  the  National  Government  to  Make  Agreements 233 

159.  Congress  cannot  make   International   Agreements 233 

160.  The  Courts  cannot  make  International  Agreements 234 


ANALYTICAL  TABLE  OF  CONTENTS.  xvii 

A.  The  Power  to  Make  Executive  Agreements. 

i6i.  The  Obligation  of  Executive  Agreements 234 

162.  Administrative  Agreements  under  Authority  of  Act  of  Congress 235 

163.  Administrative   Agreements    under    Authority   of   Treaty 236 

164.  Independent  Administrative  Agreements 237 

165.  Recent   Practice 237 

166.  The  Validity  of  Administrative  Agreements 239 

167.  The   Power  to  Make   Military  Agreements 240 

168.  Armistices  and  Preliminaries  of  Peace 241 

169.  Validity  of  Military  Agreements 242 

/170.  Power   to   Make   Diplomatic   Agreements 243 

yt^  171.  Diplomatic  Agreements  Settling  Controversies 244 

172.  Validity   of    Diplomatic   Agreements 245 

B.  The  Power  to  Make  Treaties. 

173.  The  Subject  Matter  of  Treaties 246 

174.  The  Initiation  of  Treaties 248 

175.  The  Appointment  of  Negotiators 249 

176.  The  Negotiation  and  Signature  of  Treaties 249 

177.  Consent  to  the  Ratification  of  Treaties 252 

178.  The  Ratification  of  Treaties 254 

179.  The  Exchange  of  Ratifications 254 

180.  The  Proclamation  of  Treaties 255 

C.  The  Power  to  Terminate  Treaties. 

181.  Change  in   Conditions 256 

182.  Violation  of  Treaty  by  One  Party 256 

183.  Conclusion  of  New  Treaty 257 

184.  Denunciation    by    Congress 258 

185.  Denunciation  by   the    Treaty-making   Power 259 

186.  Denunciation  by  the  President 259 

187.  Legislative    Abrogation 260 

188.  Conclusion   261  ^ 

Chapter  XV.    The  Power  to  Make  Political  Decisions  in  For- 
eign Affairs  :  Recognition,  Annexation,  Citizen- 
ship AND  the  Determination  of  Policy. 

189.  Distinction  Between  Domestic  and  Foreign  Affairs 263 

190.  State  Power  to  Make  Political  Decisions  in  Foreign  Affairs 264 

191.  National  Power  to  Make  Political  Decisions  in  Foreign  Affairs 265 

A.  The  Power  to  Recognize  Foreign  States,  Governments  and 

Belligerency. 

192.  The  Power  of  Recognition 268 

193.  Limits  of   Recognition    Power 269^ 

194.  Exclusiveness  of  President's  Recognition  Power 270 

195.  Claim  of  Congress  to  Recognition  Power 271 


xviii  ANALYTICAL  TABLE  OF  CONTENTS. 

B.  The  Power  to  Determine  National  Territory  and  Citizenship.      / 

196.  Judicial  Recognition  of  Territorial  Limits 273  ^ 

197.  Recognition  of  Territorial  Limits  by  the  President 274 

198.  Power  to  Annex  Territory  by  Treaty  and  Executive  Agreement...  274 

199.  Power  of  Congress  to  Annex  Territory 275 

200.  Power   of   Congress    to    Naturalize   Aliens   and    Establish    Criteria 

of    Citizenship 276 

201.  Power  of  Executive  to  Recognize  Citizenship 277 

C.  Power  to  Determine  Foreign  Policy. 

202.  Congressional  Resolutions  on  Incidents  in  Foreign  Affairs 278 

203.  President    not    Bound    by    Congressional    Resolutions    on    Foreign 

Affairs    279 

204.  Congressional  Declarations  of  General  Policy 281 

205.  Power  of  the  President  to  Determine  Foreign  Policy 282 


Chapter  XVI.     The  Power  to  Make  Political  Decisions  in 
Foreign  Affairs  :  War  and  the  Use  of  Force. 

A.  The  Power  to  Make  War. 

206.  The  Power  to  Make  War 284 

207.  The  Causation  of  War 284 

208.  The  Recognition  of  War  by  Congress 286 

209.  The  Recognition  of  War  by  the  President 286 

210.  The  Power  to  Recognize  War 289 

211.  The  Power  to  Declare  War 290 

212.  The  Power  to  Terminate  War 290 

213.  The  Power  to  Recognize  the  Termination  of  War 291 

B.  The  Power  to  Use  Force  in  Foreign  Affairs. 

214.  Diplomatic  Pressure 293 

215.  Display   of   Force 294 

216.  Occupation   and   Administration  of  Territory 296 

217.  Capture  and  Destruction  of  Foreign  Military  Forces 297 

218.  Seizure  and  Destruction  of  Private  Property 298 

219.  Commercial  Pressure  and  Retaliation 301 

220.  Exclusion,  Expulsion  and  Internment  of  Aliens 303 

221.  Power  to  Employ  Various  Methods  of  Coercion 304 

222.  Purposes   for  Which   the   President  May  Employ  Force  under  the 

Constitution    305 

223.  Purposes  for  Which  the  President  May  Employ  Force  under  Statute.  308 

224.  Conclusion 309 


ANALYTICAL  TABLE  OF  CONTENTS.  xix 

Chapter  XVII.     The  Power  to  Establish  Instrumentalities 
FOR  Conducting  Foreign  Relations. 

A.  Constitutional  Principles. 

225.  The  Power  of  Congress  to  Create  Offices  and  Agencies 311 

226.  The  Power  to  Create  Offices  and  Agencies  by  Treaty 312 

227.  The  Power  of  the  President  to  Create  Offices  and  Agencies 313 

228.  The  Appointment  of  Officers  and  Agents 314 

229.  Limitations  upon  the  Appointing  Power 315 

230.  Powers  of  Removing  and  Directing  Officers  and  Agents 316 

B.  Application  of  Principles  to  Foreign  Affairs. 

231.  The  Types  of  Agencies  Conducting  Foreign  Relations 317 

232.  National  Military,  Naval  and  Administrative  Offices 320 

233.  Appointment  of  Military  and  Naval  Officers 321 

234.  Organization  of  the  Department  of  State 322 

235.  National  and  International  Political  Officers  and  Agents 323 

236.  Power  to  Determine  Grades  in  the  Foreign  Service 324 

237.  Power  to  Determine  Occasion  for  Appointments  in  Foreign  Service.  326 

238.  Power  of  President  to  Appoint  Diplomatic  Agents 328 

239.  Practice  of  Sending  Presidential  Agents 329 

240.  Controversies  with  Respect  to  Presidential  Agents 330 

241.  Presidential  Agent  not  an  Officer 333 

242.  International  Administrative  and  Judicial  Agencies 334 

243.  Conclusion  on  Power  to  Conduct  Foreign  Relations 335 

PART   V. 

THE  UNDERSTANDINGS   OF  THE   CONSTITUTION. 

Chapter  XVIII.     Understandings  Concerning  the  Relations 
OF  THE  Independent  Organs. 

244.  Reason  for  Constitutional  Understandings 339 

A.  The  Overlapping  of  Powers  of  Independent  Departments. 

245.  Constitutional  Understanding  Respecting  the  Overlapping  of  Powers.   340 

246.  Concurrent  Powers  of  President  and  Congress 340 

247.  Concurrent  Powers  of  President  and  Courts 342 

248.  Concurrent  Powers  of  Treaty  Power  and  Congress 344 

B.  Cooperation  of  Independent  Organs. 

249.  Constitutional  Understanding  Respecting  the   Cooperation  of  Inde- 

pendent   Organs 346 

250.  Decisions  by  the  Courts 346 

251.  Acts  of  the  President 348 

252.  Acts  of  Congress 350 


XX  ANALYTICAL  TABLE  OF  CONTENTS. 

253.  Acts  of  the  Treaty-making  Power:  Obligation  of  the  Courts 351 

254.  Acts  of  the  Treaty-making  Power:  Obligation  of  the  President....  35? 

255.  Obligation  of  the  Treaty-making  Power  Itself  as  to  Future  Action  352 

256.  Acts  of  the  Treaty-making  Power:  Obligation  of  Congress 353 

C.  Duty  of  the  Departments  to  Act. 

257.  Constitutional  Understanding  respecting  the  Establishment  of  Neces- 

sary Instrumentalities 357 

258.  Duty  of  all  Organs  to  Aid  in  Meeting  International  Responsibilities.  357 

Chapter  XIX.    The  Control  of  Foreign  Relations  in  Practice. 

259.  The  Position  of  the  President 360 

260.  Friction  in  the  American  System 360 

261.  Criticisms  of  the  American  System 361 

262.  Need  of  Popular  Control  in  Foreign  Relations 362 

263.  Need  of  Centralization  of  Authority 363 

264.  Practice  in  American  History 364 

265.  Constitutional  Changes  not  Necessary 3^8 

266.  Need  of  Constitutional  Understandings 3^8 

Appendix  A.     Congressional  Delegation  of  Power  to  Make  In- 
ternational Agreements 375 

Appendix  B,     Constitutional  Understandings 376 

Index    -•  •  377 


TABLE  OF  CASES. 


Abrams  v.  U.  S.,  250  U.  S.  616, 

(1919)    

Ah  Fong,  In  re,  3  Sawyer  144.. 
Alleganean,  The,  Alabama  Claims 

Commission,    1885,    Moore,   Int. 

Arb.,  4333,  4675,  32  Albana  L. 

J.    484 

American   Banana   Co.  v.   United 

Fruit  Co.,  219  U.  S.  347,  (1909) 
American  Insurance  Co.  v.  Canter, 

I  Pet.  511 116,  130,  275, 

Amiable  Isabella,  The,  6  Wheat. 

I,    (1821) 218, 

Anderson  v.  Dunn,  6  Wheat.  204.. 
Anna,  The,  5  C.  Rob.  Z73<  (1805) . 
Antelope,     The,     10    Wheat.    66, 

(1825)     

Appam,     The,    243    U.    S.      124, 

(1916) 48,    172, 

Applicants  for  License,  In  re,  143 

N.  C.   I 

Appollon,  The,  9  Wheat.  362 

Argun,  The,  Takahashi,  Russo- 
Japanese    War,    761 

Baiz,  In  re,  135  U.  S.  403 172, 

Baldwin    v.    Franks,     120    U.    S. 

678 79,  88, 

Baker  v.  Portland,  5  Sawyer  566, 

(1879)     

Bartram  v.  Robertson,   122  U.  S. 

116    

Belgenland,      The,      114     U.      S. 

355    201, 

Bermuda,  The,  3  Wall.  514 

Betsey,    The,    (U.    S.)    v.    Great 

Britain,  Moore,  Int  Arb.  3208. . 
Ely  the    v.    Hinckley,    180    U.    S. 

333    

Bolcher    v.     Darrell,     Fed.     Cas. 

1607,  (1795)    

Bollman,  Ex  parte,  4  Cranch  75.. 
Brig  Aurora,  7  Cr.  382 


British  Prisoners,  Case  of  the,  I 
188  Wood    and    Min.    66,     (1845), 

90  78,  191,  194,  198 

Brown  v.  Turner,  70  N.  C.  93...   340 
Brown   v.    U.   S.,    8   Cranch    no, 

( 1814) 85,   86,    169,  300 

274      Buttfield  V.  Stranahan,   192  U.  S. 

470,    (1904) 303 

165 

Carneal  v.  Banks,  10  Wheat.  259, 
312  (1825)     90 

Carter  v.  Virginia,  96  Va.  971..     96 
234      Cary  v.  South  Dakota,  250  U.  S. 

96         118 88 

274      Chapman,  In  re,  166  U.  S.  661 . .     96 

Charkieh,  The,  L.  R.  4  A.  and  E. 
169         59,    (1873)     173 

Charlton    v.    Kelly,    229    U.     S. 
200         447 257 

Charming     Betsey,     The.       (See 
gy  Murray  v.  The  Charming  Bet- 

172  sey.) 

Cherokee    Nation    v.    Georgia,    5 
290  Pet.    I,    (1831)     173,206 

Cherokee  Tobacco  Case,  11  Wall. 
242  616,    ( 1870)    82,  260 

Chile    V.    United     States.       (See 
187  Trumbull  Case.) 

Chinese  Exclusion  Cases,   130  U. 
90         S.  581,    (1889)....  17,   130,   133 

159,  163,  260,  263,  304,  307,  344 
228      Chirac  v.   Chirac,   2  Wheat.  259, 

(1817) 72,  88,  90,  91,  26s,  277 

203      City  of  London  v.  Wood,  12  Mod. 
295  669,    (1701)     210 

Cohens    v.     Virginia,    6    Wheat. 
18  264    133 

Collector  V.  Day,  11  Wall.     113..     86 
88      Comancho,    Case    of    Venezuelan 
Minister,  Moore,  Int.  Law  Di- 

166  gest,   4 :   644    79,  162 

197       Comegys    v.    Vasse,    i    Pet.    193, 
302  (1828),   82,  116,  224,  235 

xxi 


xxil      THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


Commonwealth  v.  Kosloff,  5  Serg. 
and   Rawle   545 198 

Compagnie  Francaise  v.  State 
Board  of  Health,  186  U.  S.  380, 
(1902)    91 

Cooley  V.  Board  of  Port  War- 
dens,   13   How.   294 72>,    153,  265 

Cooper,    In  re,    138  U.   S.   404..   172 

Cooper,  In  re,  143  U.  S.  472, 
(1892) 173,    174,  343 

Cooper,  Matter  of,  22  N.  Y.  67..     97 

Cotesworth  and  Powell,  (Great 
Britain)  v.  Colombia,  Moore, 
Int.  Arb.,   2081    I9 

Cross  V.  Harrison,  16  How. 
164    116,   297,  314 

Cuba  V.  North  Carolina,  242  U. 
S.  665,    (1917)    206 

Gushing,  Adm.,  v.  U.  S.,  22  Ct. 
of  CI.   I,    (1886)    19,     82 

Davisson    v.    Sealskins,    2    Paine 

324    169 

Day,  In  re,  181  III.  y^ 97 

Day  V.  Savadge,  Hob.  85  ( 1610)  .  210 

Debs,  In  re,  158  U.  S.  564 96,  193 

Dillon,  In  re,  7  Sawyer  561,  Fed. 

Cas.  No.  3914,   (1854) 124 

Dillon    Case,    Moore,    Int.    Law 

Digest,    5 :    80,    167 40,  116 

Divina    Pastora,    The,    4   Wheat. 

52    83,    172,  272 

Dobbins  v.  Erie  County,  16  Pet. 

435    73 

107a,    114a,    (1600)    210 

Doe  V.  Bradon,  16  How.  635, 
(1853)    49,   173,  257 

Dalby  v.  Wolf,  14  Iowa  228, 
(1862)     104 

Dorr  V.  U.  S.,  195  U.  S.  138.  .80,    84 

Downes  v.  Bidwell,  182  U.  S. 
244,   (1901)    80,    89 

Dr.   Bonham's   Case,   8   Co.    Rep. 

Duskin  Case,  Cleveland,  Presiden- 
tial   Problems,   56 341 

Dubois,  Case  of  Dutch  Minister, 
1856,  Moore,  Int.  Law  Digest, 
4:  643    79,  162 

Durand  v.  Hollins,  4  Blatch. 
451    21,  306 


Durousseau   v.    U.    S.,  6   Cranch 

307    340 

Dynes  v.  Hoover,  26  How.  65 . .     85 

Ekaterinoslav,  The,  Takahashi, 
Russo-Japanese  War,   573 290 

Elkinson  v.  Deliesseline,  Leg. 
Doc.  Mass.  1845,  (Sen.  No.  31), 
p.  39,  (1823)    90,     91 

Epstein  v.  State,  128  N.  F.  353, 
(Ind.    1920)    97 

Estrella,     The,     4     Wheat.     298 

191,   200,   201 

Exchange,  The,  Schooner,  v.  Mc- 
Faddon,  7  Cr.  116, 

159,    172,    208,  242 

Fairfax    v.    Hunter,    7    Cr.    603, 

(1813)    90,     91 

Field    v.    Clark,    143    U.    S.    649, 

(1892)    30,   99,    103,    104, 

106,    no,  222,  236,  302 
Fleming      v.      Page,      9      How. 

603    130,  169,  276,  297 

Fong  Yue  Ting  v.  U.  S.,  149  U.  S. 

698,  (1893), 

83,  130,  133.  195,  266,  304 
Ford  v.  Surget,  97  U.  S.  594----  85 
Fort     Leavenworth     Railroad    v. 

Lowe,  114  U.  S.  525 89,  232 

Foster    v.    Neilson,    2    Pet.    253, 

(1829)    124,    172,   207,   274,353 

Fourteen  Diamond  Rings  v.  U.  S., 

183  U.  S.  176,  (1901). 

34,  46,  253,  254 
Fox    V.     Ohio,     5     How.      416, 

(1847)    ;• 178 

Fredericksen  v.  Louisiana,  23 
How.  443,   ( i860)    91 

Geofroy  v.  Riggs,  133  U.  S.  258, 

(1890)    ....82,  88,  89,  92,   121,  248 
Glass  V.  The  Betsey,  3  Dall.  6..  200 
Gordon    v.    U.    S.,    2    Wall.    561, 
117  U.   S.  697,    (1864), 

98,  117,  118,  312 
Grange,  The,  Att.  Gen.  Randolph, 

I  Op.  22   274 

Grapeshot,  The,  9  Wall.  129 3M 

Gray  v.  U.  S.,  21  Ct.  CI.  340. .. .     82 


TABLE  OF  CASES. 


XXUl 


Great  Britain  v.  Colombia.     (See 
Cotesworth  and  Powell  Case.) 
Green  v.  Biddle,  8  Wheat,   i 231 

Hamilton  v.  Kentucky  Distilleries 

and  Warehouse  Co.,  251  U.  S. 

146 84 

Hauenstein  v.  Lynham,  100  U.  S. 

483,    ( 1879)    88,  91,  92,  207 

Haver  v.  Yaker,  9  Wall.  ^2, 

31,  52,  253,  255 
Hawaii    v.    Mankichi,    igo    U.    S. 

197     80 

Hayburn's  Case.  2  Dall.  409 98 

Head    Money    Cases,    112    U.    S. 

580    260,   344,  384 

Heim  v.  McCall,  239  U.  S.   175, 

(19^5)    90,  91 

Henderson  v.  New  York,  92  U.  S. 

259.  (1875)    90 

Henfield,    In   re,    Fed.    Cas.,    No. 

6360    197 

Hennen,    Ex   parte,    13    Pet.   230, 

(1839)     3^7 

Hilton  V.   Guyot,    159  U.  S.   113, 

(1895)    189 

Ho  Ah  Kow  V.  Nunan,  5  Sawyer 

532,  (1879) 90 

Holmes  v.  Jennison,  14  Pet.  540, 

(1840)    91.  134.   153.   178,  230 

Hopkirk      v.      Bell,      3      Cranch 

454    88,     91 

Houston    V.     Moore,     5     Wheat. 

I  3'i2 

Hudson    V.    Guestier,    6    Cranch 

281,  (1810)    169 

Indiana   v.   Kentucky,    136   U.    S. 

479,  (1880)    274 

Insular   Cases.      (See   Downes  v. 

Bidwell.) 

Jane,   The,  37   Ct.   CI.  24    295 

Jecker  v.   Montgomery,   13  How. 

498 116,  221,  314 

Jones   V.    U.    S.,    137   U.   S.   202, 

(1890)     ....83,    130,    133,    172, 

173.  274,  343 
Jones  V.  Walker,  2  Paine  688   . .  257 

Kansas    v.    Colorado,    206   U.    S. 
46    96,  131 


Kaine,     In     re,     14     How.     103, 

(1852)    195 

Kawananako    v.    Polyblank,    205 

U.  S.  349,  (1907)    210 

Kennett    v.    Chambers,    14    How. 

38 172 

Kentucky  v.   Dennison,   24  How. 

66 3^2 

Kilbourne  v.    Thompson,    103    U. 

S.   168    95,   96,     98 

Killock,     Ex    parte,     165    U.    S. 

526 104 

King   of    Prussia   v.    Kupper,    22 

Mo.  550,  (1856)   23 

King  of   Spain  v.   Oliver,   i   Pet. 

C.  C.  217,    (1810)    23 

Kneedler    v.    Lane,    45    Pa.    238, 

(1863)     94 

Konigin     Luise,     184     Fed.     170, 

(1910)    104,  116 

La  Abra  Silver  Mining  Co.  v.  U. 

S.,    175   U.   S.  423,    (i899)..--  223 
La  Jeune  Eugenie,  2  Mason  409, 

(1822)    80,  169 

La  Ninfa,  49  Fed.  575,  (1891) I74 

La  Ninfa,   75   Fed.   513.    (1896), 

no,  116,  164,  169, 

174,  207,  224.  227,  345 
Lattimer   v.    Poteet,    14    Pet.    14, 

(1840)     89 

Legal    Tender    Cases,     12    Wall. 

457    U3 

License  Cases,  5  How.  504 91 

Lindo   v.    Rodney,    2    Doug.    613, 

(1781)    15 

Little  v.  Barreme,  2  Cranch  170, 

169,  299 
Little  v.  Watson,  32  Maine  214, 

(1850)     227 

Lottawana,  The,  21  Wall.  558 181 

McCardle,     Ex     parte,     7    Wall. 

506   99,  202,  312,  340 

McCulloch  V.  Maryland,  4  W'heat. 

316   73,  80,  103,  311 

McVeigh    v.    U.    S.,     11     Wall. 

259,   (1870)    169.  172 

Manchester  v.  Massachusetts,  139 

U.  S.  240    274 


xxiv    THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


Marbury    v.    Madison,    i    Cranch 

137    314 

Marianna  Flora,  The,   11  Wheat. 

I,    (1826)     169 

Marie  Glaeser,  The,  L.  R.  (1914), 

P.   218    48 

Martin  v.  Hunter,  i  Wheat.  304, 

(1816)     357 

Martin   v.    Mott,    12    Wheat.    19, 

104,   193,  216,  309 
A'latthews  v.  McStea,  91  U.  S.  7, 

(t8;5)    288 

Mighell     V.     Sultan     of     Johore, 

(1894),  I  Q-  B.  149  173 

Montalet    v.    Murray,    4    Cranch 

46    203 

Morrill  v.  Jones,  106  U.  S.  466..   104 
Murray  v.  The  Charming  Betsey, 

2   Cranch  64    165,  175 

Meade  v.  U.  S.,  9  Wall.  691, 

82,  116,  235 
Merryman,   Ex  parte,   Taney  Re- 
ports,  246    131 

Metzger,   (U.  S.)  v.  Haiti,  U.  S. 

For.   Rel.,    1899,   p.  262    2^,     41 

Metzger,     In    re,     5     How.     176, 

190,  194 
Metzger,     In    re,     i     Barb.    248, 

(N.    Y.,    1847)     194 

Mexico   V.    Arrangoiz,    11    How. 

Prac.  I,  (N.  Y.,  1855)   202 

Miller    V.    U.    S.,    11    Wall.    268, 

85,  169,  300 
Milligan,    Ex    parte,    4    Wall.    2, 

(1866) 85,  98,  124,  305,  307, 

311,   317,  Z22 
Minor    v.    Happersett,    21    Wall. 

162  72 

Mississippi    v.    Johnson,    4    Wall. 

475  97 

Missouri    v.    Holland,   252   U.    S. 

416,    (1920)    57,  87,  90,  91,  186 

Mitchell    V.    Harmony,    13    How. 

115,    (1851)    85,    169,  299 

Neaglc,  In  re,  135  U.  S.  i, 

157.  193.  305,  307,  313 
Neelcy  v.  Hcnkel,  180  U.  S.  log, 

(1901)  ....78,  84,  85,  116,  173,  185 
Nercide.     The,     9     Cranch     388, 

(1815)    169,  171,  173,  221 


New  York  Indians  v.  U.  S.,  170 

U.  S.   I,   (1898) 34,  46,  254 

Ocean  City  Association  v.  Shriver, 

46,  Atl.  690,   (N.  J.,  1900) 274 

Oct j  en    V.    Central    Leather    Co., 

246  U.  S.  207,  (1917)    172 

Opinions  of  Attorney  General  of 

United    States    327 

Berrien,  20  Op.  431,  (1831) . .     90 
Gushing,  6  Op.  148,  209,  291, 

(1854)   5,  18,  63,  195,  257 

Gushing,  7  Op.  186,  214,  453. 

(1855)    14,   317.  324,  341 

Gushing,     8     Op.     175,     390, 

(1856),    116,  274 

Griggs,   22   Op.  214,    (1898), 

90,  123 
Knox,  2Z  Op.  533,  (1901) ....  334 

Lee,   I   Op.  74,    ( 1797) 22 

Randolph,  i  Op.  z^ 274 

Randolph,  Fed.  Cas.  No.  6360, 

p.   1 1 16 197 

Richards,  Acting,  22  Op.   13, 

302,  341 
Wickersham,     29,     Op.     2>2'2, 

(1912)    308 

Wickersham,  32  Op.  322 94 

Wirt,  10  Op.  661,  (1824) 90 

Paquette  Habana,  175  U.  S.  (i^7, 

169,  171,  208,  221 
Parsons  v.  U.  S.,  167  U.  S.  324, 

96,  317,  341 
Passenger    Cases,    The,    7    How. 

283,    ( 1849)    90,  91,  265 

Patsone  v.  Pennsylvania,  232  U.  S. 

138    90,     91 

Pearcy   v.    Stranahan,   205   U.    S. 

257,    (1907)    173,  343 

Pensacola  Telegraph  Co.  v.  West- 
ern Union  Telegraph  Co.,  96  U. 

S.    I,    (1878)    302 

People    V.     Gerke,     5    Gal.    381, 

(1855)    91,    92 

People    V.    Noglee,    i     Cal.    232, 
(1850)    90 

Peggy,  The,  i  Cranch  103   ..344,  345 
Phoebe    Ann,    The,    3    Dall.    319, 

166,  207 
Pious     Fund,     The,     (U.     S.    v. 
Mexico),  Wilson,  Hague  Arbi- 
tration Gases,  i   65 


TABLE  OF  CASES. 


XXV 


Prevost  V.  Greenaux,  lo  How.  i, 
(1856)    91 

Prize  Cases,  The,  2  Black  635, 
39,  83,   124,    172,  284,  288,  348,  350 

Protector,  The,  12  Wall.  700, 
(1871)    173,  291,  293 

Res  Publica  v.  De  Longchamps, 
I  Dall.  Ill  177 

Rhode  Island  v.  Massachusetts,  4 
How.    591,    ( 1846) 274 

Ricaud   v.    American    Metal    Co., 

246  u.  s.  304.  (1917)  172 

Robertson  v.  Baldwin,   165  U.  S. 

275,  (1897)    84 

Rocca   V.    Thompson,    232    U.    S. 

318  91 

Rose,  The,  y]  Ct.  CI.  240   295 

Rose  V.  Himeley,  4  Cranch  241  . .  169 
Ross,  In  re,  140  U.  S.  453,  (1890), 

84,  88,    104,    116,   124,  312,  313 

Ruppert  V.  Caffey,  251  U.  S.  264.  84 

Sanborn,  In  re,  148  U.  S.  226  ..  221 
Sandberg  v.  McDonald,  248  U.  S. 

185  165 

Santiago  v.  Nogueras,  214  U.  S. 

260    297,    314,   320,341 

Santissima      Trinidad,      The,      7 

Wheat.     283   172 

Sapphire,     The,     li     Wall.     164, 

(1870)      24,  172 

Schooner   Exchange,   The.      (See 

Exchange  v.  McFaddon.) 
Scotia,  The,  14  Wall.  170,  (1871)   181 
Sea    Lion,    The,    5    Wall.    630, 

(1866)    240 

Selective  Draft  Cases,  245  U.  S. 

366    85,     94 

Shepherd    v.    Insurance    Co.,    40 

Fed.  341    52,  254 

Ship  Richmond  v.  U.  S.,  9  Cranch 

102,   (1815)    169 

Shurtleff  v.  U.  S.,  189  U.  S.  311  •  •  317 
Slaughter  House  Cases,  16  Wall. 

36    306 

Society    for    the    Propagation    of 

the    Gospel    v.    New    Haven,   8 

Wheat.     464,    (1823)    90,256 

South  Dakota  v.  North  Carolina, 

192  U.  S.  286,  (1904)    233 


Southern    Pacific   v.   Jensen,    244 

U.  S.  20s,  ( 1917)   64 

Splane,  In  re,  123  Pa.  527  97 

Spooner  v.  McConnell,  i  McLean 

347  72 

State  V.  Noyes,   30  N.  H.   279..   104 

Talbot  V.  Jensen,  3  Dall.  133 200 

Tennessee    v.    Davis,    100    U.    S. 

257 198 

Terlinden  v.  Ames,  184  U.  S.  270, 

(1902)     78,    173,    190,257 

Texas    v.    White,    7    Wall.    700, 

(i860)    71,  89,  124 

Thomas,  In  re,  12  Blatch.  370...  257 
Three    Friends,    The,    166    U.    S. 

I,    (1897)    ^1^,    173,    182, 

200,  269,  284 
Tiburcio  Parrott,  In  re,  6  Sawyer 

349,    (1880)    90,     91 

Toscano,  Ex  parte,  208  Fed.  938, 

(1913)    182,  190,  196,  207 

Trade  Mark  Cases,  100  U.  S.  82. .   105 
Truax   v.    Raich,    239   U.    S.    33, 

(1915)    90,     91 

Trumbull,      (Chile)     v.     U.     S., 

Moore,  Int.  Arb.  3569,   (1892), 

27,     41 
Tucker  v.  Alexandroff,  183  U.  S. 

424,    (1902)    78,  242 

Turner  v.  American  Baptist  Mis- 
sionary Union,  5  McLean  347, 

(1852)    9,  ^,  339 

Underbill   v.    Hernandez,    168    U. 

S.   250    172 

U.  S.  V.  Arjona,   120  U.   S.  479, 

15,  87,  154,  182 
U.  S.  V.  Coolidge,  Fed.  Cas.  No. 

14,  857   198 

U.  S.  V.  Coolidge,  i  Wheat.  415, 

(1816)     198 

U.  S.  V.  Gettysburg  Electric  Ry. 

Co.,  160  U.  S.  668 133 

U.  S.  V.  Great  Britain.     (See  The 

Betsey.) 
U.    S.    V.    Haiti.      (See    Metzger 

Case.) 
U.  S.  V.  Holmes,  5  Wheat.  412  . .   165 
U.  S.  V.  Hudson,  7  Cranch  Z'^^   •  ■   i97 


xxvi    THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


U.  S.  V.  Ju  Toy,  198  U.  S.  253, 

(190S)    83,  99,  278,  304 

U.  S.  V.  Klintock,  5  Wheat.  144, 

16s,  180 
U.  S.  V.  La  Jeune  Eugenie.     (See 

La  Jeune  Eugenie.) 
U.    S.    V.    La    Ninfa.      (See    La 

Ninfa.) 
U.  S.  V.  McCullagh,  227  Fed.  288    87 
U.  S.  V.  Moore,  3  Cranch  159..  340 
U.   S.  V.   New   York,    160  U.    S. 

615  221 

U.   S.  V.   Palmer,   5  Wheat.  610, 

(1818)    165,   172,  180 

U.  S.  V.  The  Peggy.     (See  The 

Peggy.) 
U.    S.   V.    Percheman,   7  Pet,   51, 

(1833)    172,  353 

U.  S.  V.  Perkins,  1 16  U.  S.  143..  317 
U.   S.  V.   Pirates,    5   Wheat.    184, 

(1820)    165 

U.  S.  V.  Ravara,  2  Dall.  297,  Fed. 

Cas.   No.   6122   197,  198 

U.  S.  V,  Rauscher,  119  U.  S.  407, 

178,  230 

U.  S.  V.  Reynes,  9  How.  127 172 

U.  S.  V.  Repentigny,  5  Wall.  211, 

(1866)    222 

U.  S.  V.  Robbins,  Fed.  Cas.  No. 

16,  17s,  Bees.  Adm.  266, 

78,  190,  194 
U.  S.  V.  Shauves,  214  Fed.  154..  87 
U.    S.   V.    Smith,    5    Wheat.    153, 

( 1820)    181,  201 

U.    S.   V.   Trumbull,   48   Fed.    99, 

(1891)    182 

U.    S.   V.   The   William,   28  Fed. 

Cas.  614,    (1808)    302 


U.  S.  V.  Wong  Kim  Ark,  169  U. 
S.  649    277 

U.  S.  V.  Worrall,  2  Dall.  384   ••   I97 

Villas  V.  City  of  Manilla,  220  U. 

S.  345,    (1911)    172 

Virginia  v.  Tennessee,   148  U.  S. 
503,   ( 1893)    227,  232,  274 

Ware    v.    Hylton,    3    Dall.     199, 

(1796)    ....18,  58,  88,  91.   162, 

175,  256,  257 
Watts    V.    Unione    Austriaca    de 

Navigazione,     248     U.     S.     9, 

(1918)    172 

Watts  V.   U.   S.,    I    Wash.   Terr. 

288,  (1870)    239 

Weber  v.  Freed,  239  U.  S.  325 . .  303 
Whitney  v.  Robertson,  124  U.  S. 

190 228 

Wildenhus  Case,  120  U.  S.  i 88 

Williams  v.   Suffolk  Ins.   Co.,   13 

Pet.   415    83,    172,  268 

Williams  v.  U.  S.,  23  Ct.  CI.  46. .  325 
Wilson   V.    Shaw,   204   U.    S.    24 

(1907)    83 

Wilson    V.    Wall,    73    U.    S.    83, 

(1867)    210 

Worcester  v.  Georgia,  6  Pet.  515, 

(1832)    89 

Wynan's     Petitioner,     191     Mass. 

276    91 

Yick  Wo  V.  Hopkins,   118  U.  S. 
356,  (1886)   91 

Zamora,  The,  L.  R.   (1916)   2  A. 
C.  77 170 


PART  I. 

The  Nature  of  the  Foreign  Relations  Power. 


^1 


THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


CHAPTER  I. 

The  Nature  of  the  Foreign  Relations  Power. 

I.    Difficulty  in  Developing  Legal  Theory  of  Subject. 

There  is  no  phase  of  American  constitutional  law  on  which 
commentators  have  found  it  more  difficult  to  procure  a  logical  and 
consistent  theory  than  the  control  of  foreign  relations.  Not  only 
have  opinions  differed  as  to  the  relative  powers  of  President, 
Senate  and  House  of  Representatives,  but  also  as  to  the  limitations 
imposed  upon  the  national  foreign  relations  power  as  a  whole  by  the 
guaranteed  rights  of  individuals,  "  reserved  powers  "  of  the  states 
and  the  doctrine  of  separation  of  powers.  Discussion  has  dealt 
particularly  with  the  treaty-making  power  but  similar  differences 
have  developed  in  considering  the  power  to  make  national  decisions 
such  as  the  recognition  of  foreign  states  and  governments,  and 
the  declaration  of  war,  and  the  power  to  meet  international  re- 
sponsibilities, all  of  which  are  here  included  under  the  general 
term,  the  foreign  relations  power. 

For  this  difficulty  several  reasons  may  be  assigned,  as  for 
instance,  vagueness  in  the  terms  of  the  constitution  on  this  subject, 
inconsistency  in  the  interpretations  acted  upon  by  the  political 
organs  of  government  at  different  periods  of  history,  and  the 
comparative  lack  of  judicial  interpretation,  due  to  the  tendency  of 
the  courts  to  regard  questions  involving  foreign  relations  as  political 
and  so  beyond  their  consideration.^  There  is,  however,  a  more 
fundamental  reason  for  this  difficulty,  a  reason  which  lies  back 
of  those  mentioned  and  which  explains  the  existence  of  a  similar 
difficulty    in   all    other   constitutional    states.     This    reason    is    the 


1  Infra,  sees.   107,  247. 


4  THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

dual    position    necessarily    occupied   by    the    authority    controlling 
foreign  relations. 

2.  Dual  Position  of  Foreign  Relations  Power. 

This  authority  is  on  the  one  hand  an  agency  of  the  national 
constitution.  It  is  created  by  that  instrument  and  subject  to  all 
the  limitations  of  pow^r  and  procedure  therein  expressed  or  im- 
plied. But  on  the  other  hand  it  is  the  representative  of  the  nation 
before  other  nations  and  is  expected  by  them  to  meet  international 
responsibilities  according  to  the  standard  of  international  law  and 
treaty.  Thus  its  activity  is  governed  at  the  same  time  by  constitu- 
tional law  and  international  law,  its  powers  by  one,  its  responsibili- 
ties by  the  other.  Conflicts  may  occur  in  the  application  of  these 
two  laws.  For  example,  international  law  requires  that  all  validly 
concluded  treaties  be  executed,  but  constitutional  law  may  make 
it  difficult  if  not  impossible  to  execute  particular  treaty  provisions 
because  of  certain  constitutional  limitations.  This  problem  has 
arisen  in  the  United  States  in  connection  with  the  police  power  of 
the  states  and  the  exclusive  power  of  Congress  to  appropriate 
money.  It  has  been  alleged  that  under  constitutional  law  the 
states  and  congress  are  entitled  to  an  unlimited  discretion  in  exer- 
cising these  powers  irrespective  of  treaty  provisions.^  Commentators 
have  differed  in  their  views  as  to  the  scope  of  the  powers  belonging 
to  the  various  organs  controlling  foreign  relations,  according  as 
they  have  approached  the  subject  from  the  constitutional  or  from 
the  international  point  of  view. 

3.  The  International  Point  of  View. 

If  the  international  point  of  view  were  adopted  in  full  it  would 
result  that  an  international  commitment  made  by  the  proper  con- 
stitutional authority  would  bind  all  organs  of  the  government. 
Thus  Secretary  of  State  Livingston  wrote  the  French  government 
in  1833: 


2  Infra,  sees.  50,  59. 


NATURE  OF  THE  FOREIGN  RELATIONS  POWER.  5 

"  The  government  of  the  United  States  presumes  that  whenever  a  treaty 
has  been  concluded  and  ratified  by  the  acknowledged  authorities  competent 
for  that  purpose,  an  obligation  is  thereby  imposed  upon  each  and  every  de- 
partment of  the  government  to  carry  it  into  complete  effect,  according  to  its 
terms,  and  that  on  the  performance  of  this  obligation  consists  the  due  ob- 
servance of  good  faith  among  nations."  ^ 

But  constitutions,  acting  by  tradition  and  convenience,  if  indeed 
not  practical  necessity,  have  ordinarily  vested  the  power  of  inter- 
national negotiation  in  a  single  individual,  the  chief  executive, 
acting  with  or  without  the  advice  of  a  council.*  Now  the  inter- 
national commitments  of  this  individual  might  radically  alter  the 
constitution.  They  might  impair  national  independence.  They 
might  establish  autocracy.  Were  these  commitments  fundamental 
law,  obligatory  upon  all  organs  of  the  government,  the  achievements 
of  centuries  of  battling  for  constitutionalism  and  popular  sover- 
eignty might  be  sacrificed  by  the  stroke  of  a  pen.' 


3  Wharton,  Int.  Law  Digest,  2:  67.  See  also  Gushing,  At.  Gen.  1854,  6  Op. 
291;  Duer,  Outlines  of  Gonstitutional  Jurisprudence,  138;  Wheaton,  Ele- 
ments of  Int.  Law,  Dana  ed.  Sec.  543;  Moore,  Int.  Law  Digest,  5:  230,  370; 
Willoughby,  Constitutional  Law,  i :  515,  infra,  sec.  37.  This  doctrine  seems 
to  be  an  implication  of  Art.  VI,  sec.  2  of  the  Gonstitution  of  the  United 
States — "  all  treaties  made,  or  which  shall  be  made,  under  the  authority  of 
the  United  States,  shall  be  the  supreme  Law  of  the  Land  " — but  it  must  be 
admitted  that  the  United  States  has  been  more  insistent  upon  applying  it  to 
other  nations  than  to  itself.  (Infra,  sec.  39.)  Nations  usually  adopt  the 
international  point  of  view  in  discussing  the  powers  and  responsibilities  of 
other  nations,  the  constitutional  point  of  view  in  discussing  their  own  powers 
and  responsibilities. 

*  "  The  necessity  of  such  caution  and  secrecy  was  one  cogent  reason  for 
vesting  the  power  of  making  treaties  in  the  President',  with  the  advice  and 
consent  of  the  Senate,  the  principle  on  which  that  body  was  formed  con- 
fining it  to  a  small  number  of  members."  Washington,  Message  to  House 
of  Representatives,  March  30,  1796,  Richardson,  Messages  and  Papers  of  the 
President,  i :  195.  "  The  reason  why  we  trust  one  man,  rather  than  many,  is 
because  one  man  can  negotiate  and  many  men  can't.  Two  masses  of  people 
have  no  way  of  dealing  directly  with  each  other.  .  .  .  The  very  qualities 
which  are  needed  for  negotiation — quickness  of  mind,  direct  contact,  adap- 
tiveness,  invention,  the  right  proportion  of  give  and  take — are  the  very 
qualities  which  masses  of  people  do  not  possess."  Lippmann,  The  Stakes 
of  Diplomacy.  N.  Y.,  1915,  pp.  26,  29. 

5  "  Applying  the  principle  broadly,  the  contention  that  one  department  of 
the  Government  may  in  any  way  coerce  another  is  a  repudiation  of  the  very 


6         THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

4.  The  Constitutional  Point  of  View. 

If,  on  the  other  hand,  the  constitutional  point  of  view  is  adopted 
in  full,  the  situation  seems  even  less  promising.  Yet  illustrations 
are  not  wanting.  The  House  of  Representatives  resolved  in  1796 
and  again  in  1871  that: 

"When  a  treaty  stipulates  regulations  on  any  of  the  subjects  submitted 
by  the  Constitution  to  the  power  of  Congress,  it  must  depend  for  its  execu- 
tion as  to  such  stipulations  on  a  law  or  laws  to  be  passed  by  Congress ;  and 
it  is  in  the  constitutional  right  and  duty  of  the  House  of  Representatives  in 
all  such  cases  to  deHberate  on  the  expediency  or  inexpediency  of  carrying 
such  treaty  into  eflfect  and  to  determine  and  act  thereon,  as  in  their  judg- 
ment may  be  most  conducive  to  the  public  good."  ^ 

Should  a  general  opinion  develop  that  national  commitments 
made  by  the  proper  constitutional  authority  and  solemnized  with 
due  formality  might  be  ignored  or  repudiated  by  other  organs  of 
the  government  because  of  some  obscure  constitutional  limitation, 
unknown  to  a  foreign  nation,  the  authority  conducting  foreign 
relations  could  no  longer  command  a  hearing  as  the  representative 
of  the  nation,  international  negotiation  would  be  unfruitful  and 
international  anarchy  would  prevail.' 


purpose  of  the  division  of  power,  and  would  result  in  the  destruction  of 
that  freedom  under  law  which  the  Constitution  aims  to  establish.  If  such 
an  attempt  were  for  any  reason  successful,  it  would  result  in  the  establishing 
of  an  autocratic  form  of  government.  Absolutism,  which  the  Constitution 
was  intended  to  prevent,  might  thus  creep  in  through  the  usurpation  of 
power  by  a  single  department,  or  even  by  a  single  officer  of  the  Government. 
There  could  be  no  greater  offense  against  the  Constitution  than  this,  and 
public  opinion  should  unite  in  condemning  even  the  suggestion  of  it."  D.  J. 
Hill,  Present  Problems  in  Foreign  Policy,  N.  Y.,  1919,  p.  163. 

« Annals,  4th  Cong.,  ist  Sess.,  p.  771;  Cong.  Globe,  426.  Cong.,  i5t 
Sess.,  p.  835 ;  Wharton,  Int.  Law  Digest,  2 :  19. 

'■  "  Others,  though  consenting  that  treaties  should  be  made  in  the  mode  pro- 
posed, are  averse  to  their  being  the  supreme  law  of  the  land.  They  insist 
and  profess  to  believe  that  treaties,  like  acts  of  assembly,  should  be  repealable 
at  pleasure.  This  idea  seems  to  be  new  and  peculiar  to  this  country,  but 
new  errors  as  well  as  new  truths  often  appear.  These  gentlemen  would  do 
well  to  reflect  that  a  treaty  is  only  another  name  for  a  bargain,  and  that 
it  would  be  impossible  to  find  a  nation  who  would  make  any  bargain  with 
us  which  should  be  binding  on  them  absolutely,  but  on  us  only  so  long  and 
so  far  as  we  may  think  proper  to  be  bound  by  it."  Jay,  Federalist  No.  64, 
Ford  ed.,  p.  431.     See  also  Washington,  message  cited  supra,  note  4. 


NATURE  OF  THE  FOREIGN  RELATIONS  POWER.       7 

5.  Methods  of  Reconciling  these  Points  of  View. 

In  practice  modern  states  have  avoided  both  alternatives  by 
compromises,  partly  of  a  legal  and  partly  of  a  conventional  char- 
acter.' There  has  been  a  tendency  for  constitutions  to  multiply  the 
organs  whose  concurrence  is  necessar}'  to  bring  foreign  negotiations 
to  a  valid  conclusion.  Thus  many  constitutions  now  vest  power 
to  make  the  most  important  decision  in  foreign  affairs,  such  as 
declarations  of  war  and  the  ratification  of  treaties,  in  the  legislative 
body.*  So  far  as  this  is  done,  there  is  no  difficulty  in  giving  inter- 
national commitments  the  force  of  law.  However,  a  practical 
difficulty  is  here  met.  The  legislative  body  is  usually  large,  slow 
moving  and  ill  informed  on  foreign  relations.  Many  international 
situations  must,  under  present  conditions,  be  met  by  personal  nego- 
tiation and  immediate  decision  for  which  such  a  body  is  ill 
adapted.^"  Consequently  many  types  of  international  commitment 
are  still  made  by  executive  authority.  In  these  cases,  and  in  fact 
they  are  still  the  majority,  the  difficulty  is  solved  either  by  con- 
stitutional understandings,  whereby  the  executive  power  is  in  fact 
if  not  in  law  expected  to  act  in  such  a  way  that  the  other  organs 
of  government  will  approve  its  action ;  or  by  international  under- 
standings whereby  the  other  states  of  the  world  consider  commit- 
ments formally  concluded  by  the  executive  authority  merely  pro- 
visional until  they  have  been  endorsed  by  other  organs  of  the 
government,  whose  cooperation  is  necessary  for  their  execution.^^ 

6.  Relation  of  Law  and  Understandings. 

The  writer  believes  that  a  comprehensive  legal  theory  of  the 
control  of  foreign  relations  must  give  equal  weight  to  the  powers 
and  responsibilities  derived  from  both  constitutional  law  and  inter- 
national  law.     But   in   constructing  such   a  theory,   he   has    found 


8  See  Dicey,  The  Law  of  the  Constitution,  8th  ed.,  p.  23,  for  this  dis- 
tinction. 

^Wright,  The  Legal  Nature  of  Treaties,  Am.  Jl.  of  Int.  Law,  10:  711 
et  seq. 

10  Supra,  note  4. 

11  Wright,  Am,  Jl.  of  Int.  Law,  10:  710;  and  infra,  sec.  39. 


8  THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

himself  forced  to  take  account  of  understandings  of  the  kind 
mentioned.  He  beHeves  these  understandings  furnish  the  true 
explanation  of  the  functioning  of  all  systems  for  controlling  foreign 
relations  and  especially  of  that  in  the  United  States.  Without 
them  a  constitutional  deadlock  or  an  international  breach  of  faith 
would  be  probable  at  every  important  international  transaction. 

7.  Constitutional  Understandings. 

The  constitutional  understandings  are  based  on  the  distinction 
between  the  possession  of  a  power  and  discretion  in  the  exercise  of 
that  power.  The  law  of  the  constitution  decides  what  organs  of 
the  government  possess  the  power  to  perform  acts  of  international 
significance  and  to  make  valid  international  commitments,  but 
the  understandings  of  the  constitution  decide  how  the  discretion  or 
judgment,  implied  from  the  possession  of  power,  ought  to  be  ex- 
ercised in  given  circumstances.^^  The  powers  given  by  law  to 
various  organs  often  overlap.  Even  more  often,  two  or  more 
organs  must  exercise  their  powers  in  cooperation  in  order  to  achieve 
a  desired  end.  In  such  circumstances,  were  it  not  for  understand- 
ings, deadlocks  would  be  chronic.  The  law  is  the  mechanism,  the 
understandings  the  oil  that  permit  it  to  run  smoothly. 

8.  International  Understandings. 

International  understandings  are  based  on  the  same  distinction 
as  constitutional  understandings  and  are  often  referred  to  as 
comity  or  imperfect  rights  under  international  law.  "  Our  obliga- 
tions to  others,"  says  Vattel,  "  are  always  imperfect  when  the 
decision  as  to  how  we  are  to  act  rests  with  us."^^  They  are 
observed  on  the  principle  of  reciprocity  and  are  of  two  kinds. 
Thus  states  are  accustomed  to  exchange  certain  courtesies  and 
favors,  not  required  by  strict  law.     They  also  sometimes  withhold 


12  Dicey,  op.  cit.,  p.  418. 

^3  Vattel,  The  Law  of  Nations,  Introduction,  sec.  17;  see  also  Pliillimore, 
Commentaries  on  Int.  Law,  i:  161,  sec.  163;  Hall,  Int.  Law,  7th  ed.  (Hig- 
gins),  pp.  14,  56;  Woolsey,  Int.  Law,  sec.  24;  Davis,  Elements  of  Int.  Law, 
4fh  ed.  (Sherman),  pp.  92,  116;  Wright,  The  Understandings  of  Int.  Law, 
4m.  Jl.  of  Int.  Latv,   14:   568    (Oct.,   1920), 


NATURE  OF  THE  FOREIGN  RELATIONS  POWER.      9 

pressure  when  others  fail  to  meet  the  responsibilities  imposed  by 
strict  law.  It  is  with  the  latter  kind  that  we  are  especially  con- 
cerned here.  As  an  example,  international  law  requires  that  com- 
mitments to  be  valid  be  made  by  the  proper  constitutional  authority, 
and  therefore  assumes  that  all  governments  are  informed  of  the 
authority  in  foreign  states  with  which  they  deal,  competent  to  make 
various  sorts  of  international  commitments.  International  law, 
however,  considers  that  commitments  once  made  must  be  carried 
out.^*  It  knows  nothing  of  constitutional  restrictions  making  ex- 
ecution difficult  or  impossible,  consequently  governments  are  not 
required  to  know  the  agencies  in  foreign  states  for  executing  inter- 
national commitments  and  are  entitled  to  protest  if  execution 
fails,  whatever  the  cause.  If  such  protests  are  withheld  it  is  by 
virtue  of  an  international  understanding.^'* 

Constitutional  understandings  suggest  modes  of  exercising  con- 
stitutional powers  out  of  respect  for  international  responsibilities. 
International  understandings  suggest  a  tolerant  attitude  toward 
certain  deficiencies  in  the  meeting  of  international  responsibilities 
out  of  respect  for  constitutional  limitations. 


1*  Wright,  Columbia  Law  Rev.,  20:   121-122;  and  infra,  sec.  39. 
15  Turner  v.  Am.  Baptist  Union,  5  McLean  347  (1852).    See  also  Wright, 
Am.  Jl.  of  Int.  Law,  10:  709,  716,  and  infra,  sec.  39. 


PART  11. 

The  Position  of  the  Foreign  Relations  Power 
Under  International  Law. 


CHAPTER  II. 
The  Representative  Organ  of  Government. 

9.  The  Nature  of  International  Law. 

International  law  has  developed  in  a  society  based  upon  the 
assumption  of  the  complete  independence  of  territorial  states.^ 
This  independence  is  commonly  said  to  imply  that  the  state  has 
power  to  form  a  constitution  and  organize  a  government  as  it 
sees  fit;  to  formulate  law  and  administer  justice  within  its  ter- 
ritory according  to  its  own  notions;  to  formulate  and  pursue 
foreign  policies  and  to  be  the  sole  judge  of  its  international  respon- 
sibilities.^ However,  the  contemporary  and  contiguous  existence 
of  many  states,  each  with  an  equal  independence,  practically  re- 
quires limitations  in  the  exercise  of  these  powers  and  the  practice 
and  usage  defining  these  limitations  constitute  international  law. 
The  formulation,  however,  of  a  body  of  practice  as  law  implies 
responsibility  for  its  observance.  Thus  we  may  define  interna- 
tional law  as  the  body  of  rules  and  principles  of  conduct,  observed 
within  the  society  of  independent  states,  for  the  violation  of  which 
states  are  habitually  held  responsible,  by  diplomatic  protest,  inter- 
vention, reprisals,  war  or  other  means.' 


1 "  In  the  fifteenth  century  international  life  was  fast  resolving  itself  into 
a  struggle  for  existence  in  its  barest  form.  In  such  condition  of  things  no 
law  could  be  established  which  was  unable  to  recognize  absolute  independence 
as  a  fact  prior  to  itself."  W.  E.  Hall,  Inf.  Law,  7th  ed.  (Higgins),  1917,  p. 
18. 

2  Wilson,  Handbook  of  Int.  Law,  1910,  p.  56;  Hershey,  The  Essentials 
of  Int.  Pub.  Law,  1912,  p.  147;  Bonfils,  Manuel  de  droit  international  public, 
6th  ed.  (Fauchille).  1912,  sec.  58,  p.  119;  Borchard,  The  Diplomatic  Pro- 
tection of  Citizens  Abroad,  1915,  p.  177;  Wright,  Am.  Pol.  Sci.  Rev.,  13:  563; 
Columbia  Lazv  Rev.,  20:  146. 

3  For  justification  of  this  definition  and  comparison  with  other  defini- 
tions see  Wright,  Enforcement  of  Int.  Law  through  Municipal  Law  in  U.  S-, 
U.  of  111.,  Studies  in  the  Social  Sciences,  5 :  12-13  and  Borchard,  op.  cit.,  p. 
177  et  seq. 

13 


14       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

10.  The  Independence  of  States. 

Of  the  various  fields  to  which  the  independence  of  a  state 
extends,  it  is  clear  that  other  states  would  be  less  affected  by  a 
state's  constitution  and  form  of  organization  than  by  the  legislation 
and  administration  of  justice  in  its  territory.  Furthermore,  each 
of  these  would  affect  other  states  less  than  the  course  of  its  foreign 
policy  and  the  interpretation  of  its  international  responsibilities. 
However,  history  has  shown  that  the  constitution  and  form  of  or- 
ganization of  states  is  not  a  matter  of  total  indifference  to  their 
neighbors  *  and  international  law  does  limit  the  exercise  of  in- 
dependence even  in  this  field,  but  as  a  corollary  to  limitations  upon 
the  state's  external  and  internal  activity.  Acts  and  omissions,  not 
institutions  are  the  primary  concern  of  international  law,  but  the 
interrelation  of  the  two  cannot  be  ignored. 

For  example,  international  law  requires  that  states,  desiring  to 
enter  into  relations  with  other  states,  do  so  through  diplomatic 
officers  exercising  powers  and  enjoying  rights  and  privileges  fixed 
by  international  law  or  treaty.^  So  also  states  admitting  foreigners 
to  their  territory  are  required  by  international  law  to  maintain 
courts  acting  under  a  procedure  calculated  to  assure  substantial 
justice."     Where  they  have  not  been  able  to  do  this,  foreign  states 

*  Note  for  example  the  sympathy  of  the  Holy  Alliance  for  absolute  gov- 
ernments and  of  the  United  States  for  popular  governments  since  its  founda- 
tion. (See  Greene,  Am.  Interest  in  Popular  Government,  War  Information 
Series,  Sept.,  1917,  No.  8.)  "  A  steadfast  concert  for  peace  can  never  be 
maintained  except  by  a  partnership  of  democratic  nations.  No  autocratic 
government  could  be  trusted  to  keep  faith  within  it  or  observe  its  covenants. 
.  .  .  We  are  accepting  the  challenge  of  hostile  purpose  because  we  know  that 
in  such  a  government  following  such  methods,  we  can  never  have  a  friend, 
and  that  in  the  presence  of  its  organized  power,  always  lying  in  wait  to  ac- 
complish we  know  not  what  purpose,  there  can  be  no  assured  security  for 
the  democratic  governments  of  the  world.  .  .  .  The  world  must  be  made 
safe  for  democracy."     President  Wilson,  War  Message,  April  2,   1917. 

5  The  classification  of  these  officers  as  fixed  by  the  treaty  of  Vienna  1815 
has  been  generally  accepted.  Wilson  and  Tucker,  Int.  Law,  7th  ed.,  p.  162. 
It  is  recognized  that  Article  II,  sec.  2,  cl.  2  of  the  Constitution  of  the  U.  S., 
relating  to  the  appointment  of  ambassadors  and  other  public  ministers,  is  to 
be  interpreted  according  to  international  law.  Gushing,  Attorney  General, 
7  Op.  190,  192.    Infra,  sec.  236. 

^  "  Nations  are  bound  to  maintain  respectable  tribunals  to  which  the  sub- 
jects of  states  at  peace  may  have  recourse  for  the  redress  of  injuries  and 


REPRESENTATIVE  ORGAN  OF  GOVERNMENT.      15 

have  habitually  exercised  diplomatic  protection  of  their  nationals 
or  have  insisted  that  permission  be  given  them  to  establish  extra- 
territorial courts  for  deciding  cases  in  which  their  nationals  are 
defendant/ 

II.  The  Representative  Authority  Under  International  Law. 

More  important  for  our  purposes,  however,  is  the  requirement 
of  international  law  that  states  maintain  a  definite  authority  to 
which  foreign  states  may  complain  of  violations  of  international  law 
and  from  which  they  may  expect  satisfaction  on  the  basis  of  that  law 
alone.  This  requirement  appears  to  be  a  necessary  deduction  from 
the  accepted  principle  that  under  international  law  states  are  re- 
sponsible as   units*   and  that  this    responsibility   is   unaffected   by 


the  maintenance  of  their  rights."  Mr.  Webster,  Secretary  of  State,  to 
Chevalier  d'Argaiz,  Spanish  Minister,  June  2,  1842,  Moore,  Digest,  2:  5. 
See  also  Borchard,  Diplomatic  Protection  of  Citizens  Abroad,  1915,  p. 
213,  335;  Moore,  Digest,  6:  695.  The  obligation  to  establish  courts  punish- 
ing offenses  against  international  law  was  recognized  by  Congress  before  the 
Constitution  (See  Wright,  Enforcement  of  Int.  Law,  p.  221)  and  is  recog- 
nized in  the  Constitution  (Art.  i,  sec.  2,  cl.  10).  The  obligation  of  a  bel- 
ligerent to  establish  prize  courts  is  especially  well  recognized.  "  Neutral 
states  have  a  right  to  demand  ex  dehito  juditice  that  there  be  courts  for  the 
administration  of  international  law  sitting  in  the  belligerent  countries." 
(Phillimore,  Int.  Law,  i:  55.)  See  also  report  of  British  Commission  on 
Silesian  Loan  controversy,  1753,  American  State  Papers,  For.  Rel.,  i:  494; 
Moore,  Digest,  7 :  603 ;  Lord  ^Mansfield  in  Lindo  v.  Rodney  2  Doug.  613, 
616  (1781)  ;  Lord  Stowell  in  the  Recovery,  Rob.  348  (1807).  Diplomatic 
discussion,  however,  is  not  necessarily  excluded  until  such  judicial  remedies 
are  exhausted  (infra,  note  13). 

■^  Borchard,  op.  cit.,  p.  346. 

8  Borchard,  op.  cit.,  pp.  199-201.  Hall,  Int.  Law,  7th  ed.,  p.  54.  Wilson 
and  Tucker,  op.  cit.,  p.  45,  defines  a  state  for  purposes  of  international  law  as 
"  a  sovereign  political  unity."  The  Supreme  Court  has  said :  "  the  National 
Government  is  .  .  .  responsible  to  foreign  nations  for  all  violations  by  the 
United  States  of  their  international  obligations,"  U.  S.  v.  Arizona,  120  U.  S. 
479,  483.  Apparent  exceptions  to  this  unity  of  responsibility  such  as  federal 
states  whose  constitutions  permit  a  limited  diplomatic  power  to  the  member 
states  (Germany  and  Switzerland)  and  imperial  commonwealths  which  in 
practice  permit  their  self-governing  colonies  to  exercise  considerable  diplo- 
matic power  (British  Empire)  (See  Moore,  Digest,  i :  25 ;  Wright,  Am.  Jl. 
of  Int.  Law,  13 :  265)  prove  not  to  be  on  inspection.  In  these  cases  the 
power  of  making  commitments  is  to  some  extent  distributed  but  responsi- 
bility for  their  execution  continues  unified.     Thus  the  German  Constitution 


16       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS, 
domestic    law.**     States    have    uniformly    refused    to    accept    con- 


of  1871  made  it  the  duty  of  "  the  Emperor  to  represent  the  Empire  among 
nations  "  and  foreign  nations  have  held  the  imperial  government  responsible 
for  the  execution  of  treaties  made  by  the  member  states.  "  Unquestionably," 
wrote  Secretary  of  State  Bryan  to  Ambassador  Gerard  on  April  28,  1915, 
"the  destruction  of  this  vessel  (William  P.  Frye)  was  a  violation  of  the 
obligations  imposed  upon  the  Imperial  German  Government  under  existing 
treaty  stipulations  between  the  United  States  and  Prussia,  and  the  United 
States  government,  by  virtue  of  its  treaty  rights,  has  presented  to  the  Im- 
perial German  Government  a  claim  for  indemnity  on  account  of  the  result- 
ing damages  suffered  by  American  citizens."  (U.  S.  White  Book,  European 
War  No.  i,  p.  88.)  Germany  had  admitted  its  responsibility  under  the 
treaty  in  an  earlier  note.  (Ibid.)  Under  the  German  Constitution  of  1919 
"  The  Commonwealth  has  exclusive  jurisdiction  over  foreign  relations " 
(Art.  6)  and  though  "  the  states  may  conclude  treaties  with  foreign  countries 
in  matters  subject  to  their  jurisdiction,  such  treaties  require  the  assent  of  the 
commonwealth."     (Art.  78.) 

The  responsibility  of  the  British  government  for  acts  of  the  self-governing 
dominions  has  never  been  questioned  and  apparently  remains  even  though 
these  dominions  are  given  independent  representation  in  the  League  of  Na- 
tions. "  Disputes,"  said  President  Wilson  before  the  Senate  Foreign  Rela- 
tions Committee,  "  can  rise  only  through  the  Governments  which  have 
international  representation.  In  other  words,  diplomatically  speaking,  there 
is  only  one  '  British  Empire.'  The  parts  of  it  are  but  pieces  of  the  whole. 
The  dispute,  therefore,  in  the  case  you  have  supposed  (dispute  between  the 
United  States  and  the  United  Kingdom)  would  be  between  the  United  States 
as  a  diplomatic  imit  and  the  British  Empire  as  a  diplomatic  unit."  David 
Hunter  Miller,  technical  expert  at  the  Peace  Conference,  testified  to  the 
same  effect : 

"  Senator  Hitchcock :  '  So  that  any  dispute  that  could  arise  between  the 
United  States  and  the  Dominion  of  Canada  involves  the  whole  British  Em- 
pire?' 

"Mr.  Miller:  'It  seems  so  to  me,  Senator.'"  (66th  Cong.,  ist  Sess., 
Senate  Doc.  No.   106,  pp.  540,  422.) 

8  Moore,  Digest,  6:  309-324,  especially  pp.  317,  321.  This  ineffectiveness 
of  municipal  law  extends  both  to  the  right  and  the  remedy.  Thus  municipal 
law  cannot  alter  the  international  law  principles  of  responsibility.  (Supra, 
sec.  89.)  In  a  few  matters,  as  for  instance,  the  protection  of  resident  aliens, 
international  law  has  to  a  limited  extent  adopted  the  municipal  responsibility 
of  a  state  as  the  measure  of  its  international  responsibility.  In  such  cases 
the  principles  of  municipal  responsibility  become  indirectly  subject  to  inter- 
national discussion.  This,  however,  does  not  vitiate  the  principle  stated. 
(Borchard,  op.  cit.,  116,  178,  179.)  Nor  can  municipal  law  deprive  foreign 
states  of  remedies  such  as  diplomatic  intervention  or  the  use  of  force  recog- 
nized by  international  law,  though  South  American  States  have  frequently  as- 
serted the  contrary.     (Ibid.,  p.  836.) 


REPRESENTATIVE  ORGAN  OF  GOVERNMENT.  17 

stitutional  limitations/"  legislative  acts^^  or  omissions/^  or  judicial 

1*'  "  The  contention  of  Mr.  Marcy  in  the  case  of  M.  Dillon,  French  consul 
at  San  Francisco,  that  the  sixth  amendment  to  the  Constitution  of  the 
United  States,  which  provides  that  an  accused  party  shall  have  compulsory 
process  for  obtaining  witnesses  in  his  favor,  should  be  considered  as  quali- 
fying the  general  and  absolute  terms  of  the  consular  convention  with  France, 
'  was  not  acquiesced  in  by  the  French  government,  which  required  their  flag, 
when  raised  to  the  mastheads  of  certain  of  their  men-of-war  at  San  Fran- 
cisco, to  be  saluted  as  a  reparation  for  the  alleged  indignity  to  their  consul.' " 
Mr.  Fish,  Secretary  of  State,  to  Mr.  Bassett,  Oct.  i8,  1872,  Moore,  Digest, 
S:  8r.     See  also  Borchard,  op.  cit.,  p.  201,  226,  839,  845.    Infra,  sec.  31. 

11  Borchard,  o/>.  cit.,  pp.  181,  838  et  seq.,  Moore,  Digest,  6 :  309-324.  There 
have  been  numerous  cases  in  which  the  legislative  abrogation  of  a  treaty  or 
the  passage  of  laws  in  conflict  with  international  law  or  treaty,  though  valid 
in  municipal  law,  have  proved  no  defense  to  international  protests.  See 
Moore,  Digest,  S :  357,  365.  For  principles  of  municipal  law  governing 
the  application  of  constitutions,  statutes  and  ordinances  in  violation  of  in- 
ternational law,  see  Wright,  Am.  Jl.  Int.  Law,  11:  i,  566.  China  refused  to 
accept  the  exclusion  acts  as  an  excuse  for  violations  of  her  treaties  (For 
references  to  her  protests,  see  Moore,  Digest,  4:  198,  202,  213,  235)  and  the 
U.  S.  Supreme  Court  recognized  that  these  laws  though  valid  in  municipal 
law  were  no  defense  in  international  law.  "  It  must  be  conceded  that  the 
act  of  1888  is  in  contravention  of  express  stipulations  of  the  treaty  of  1868 
and  of  the  supplementary  treaty  of  1880,  but  it  is  not  on  that  account  in- 
valid or  to  be  restricted  in  its  enforcement  (in  municipal  law).  .  .  .  The 
question  whether  our  government  was  justified  in  disregarding  its  engage- 
ments with  another  nation  is  not  one  for  the  determination  of  this  court. 
.  •  .  This  court  is  not  a  censor  of  the  morals  of  the  other  departments  of  the 
government."  (Chinese  Exclusion  Cases,  130  U.  S.  589,  600.)  President 
Hayes  by  vetoing  an  earlier  act  (1879)  had  recognized  the  impossibility  of 
avoiding  international  responsibility  by  legislation.  "  Were  such  delay  fraught 
with  more  inconveniences  than  have  ever  been  suggested  by  the  interests 
most  earnest  in  promoting  this  legislation,  I  cannot  but  regard  the  sum- 
mary disturbance  of  our  existing  treaties  with  China  as  greatly  more  in- 
convenient to  much  wider  and  more  permanent  interests  of  the  country.  I 
have  no  occasion  to  insist  upon  the  more  general  considerations  of  interest 
and  duty  which  sacredly  guard  the  faith  of  the  nation,  in  whatever  form 
of  obligation  it  may  have  been  given."  (Message,  March  i,  1879,  Richard- 
son, Messages  and  Papers  of  the  Presidents,  7:  519.)  The  matter  was  suc- 
cinctly explained  by  Secretary  of  State  Fish  in  1876.  "  Of  course,  in  speak- 
ing of  the  effect  of  subsequent  legislation  upon  the  provisions  of  a  prior 
treaty,  I  refer  only  to  the  effect  in  the  country  where  the  legislation  is 
enacted,  and  upon  the  officers  and  people  of  that  country.  The  foreign  nation, 
whose  rights  are  invaded  thereby,  has  no  less  cause  of  complaint  and  no 
less  right  to  decline  to  recognize  any  internal  legislation  which  presumes  to 
limit  or  curtail  rights  accorded  by  treaty."  Moore,  Digest,  5 :  365.  Wharton, 
Digest,  i:  35. 


18       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS, 
decisions^^   as   mitigations    of    international    responsibility.     It    fol- 


12  Borchard,  op.  cit.,  p.  214.  The  lack  of  legislation  to  give  efifect  to 
international  law  was  not  thought  by  Great  Britain  to  absolve  the  United 
States  from  responsibihty  for  its  failure  to  secure  the  release  of  Alexander 
McLeod  from  state  jurisdiction  in  1841.  (Lord  Ashburton,  British  Minister, 
to  Secretary  of  State  Webster,  July  28,  1842,  Moore,  Digest,  2:  28.)  Italy 
was  not  deterred  from  pressing  her  claims  on  account  of  the  Louisiana 
lynchings  during  the  nineties  by  the  plea  that  the  United  States  had  not 
passed  legislation  necessary  to  give  effect  to  treaties.  (Moore,  Digest,  6: 
848,  United  States  Foreign  Relations,  1901,  283-299.)  The  United  States 
saw  no  merit  in  the  British  contention  that  lack  of  legislation  excused  it's 
failure  to  prevent  departure  of  the  Alabama  in  1862  and  the  Geneva  Arbitra- 
tion of  1871  upheld  the  American  position  saying,  "  The  government  of  Her 
Britannic  Majesty  cannot  justify  itself  for  failure  in  due  diligence  on  the 
plea  of  insufficiency  of  the  legal  means  of  action  which  it  possessed." 
(Moore,  Digest,  6:  1061 ;  Malloy,  Treaties  of  the  United  States,  i:  719; 
Moore,  International  Arbitrations,  4:  4101-4109;  Digest,  7:  878.)  The 
American  Continental  Congress  recognized  this  need  of  legislation  in  order  to 
meet  many  international  responsibilities  and  urged  the  passage  of  suitable  laws 
by  the  states  (Journ.  Congress,  7:  181;  Ford  ed.,  21:  1137).  The  Constitu- 
tion authorizes  such  legislation  (Art.  i,  sec.  8,  cl.  10)  and  Congress  has 
enacted  many  statutes  for  this  purpose.  (Wright,  Enforcement  of  Int.  Law 
through  Municipal  Law,  pp.  221-223;  infra,  sees.  1 12-122.)  Presidents  have 
repeatedly  urged  further  legislation  of  this  character,  especially  legislation 
giving  federal  courts  jurisdiction  adequate  to  protect  the  treaty  rights  of 
aliens.  (Pres.  Harrison,  Message,  Dec.  9,  1891 ;  Pres.  McKinley,  Messages, 
Dec.  5,  1899,  Dec.  3,  1900;  Pres.  Roosevelt',  Message,  Dec,  1906;  Pres. 
Taft,  The  United  States  and  Peace,  N.  Y.,  1914,  pp.  64-68.)  The  courts, 
attorneys  general  and  text  writers  have  insisted  that  the  passage  of  such 
legislation  is  a  constitutional  duty  of  Congress.  (Iredall,  J.,  in  Ware 
V.  Hylton  (1796),  i  Dall,  199;  Gushing,  Att.  Gen.  6  Op.  291  (1854),  Moore, 
5:  370;  Willoughby,  Constitutional  Law,  i:  487;  Wheaton,  Elements  of  In- 
ternational Law,  sec.  266,  Dana's  note,  pp.  339,  715.)  We  may  agree  with 
Mr.  Root :  "  It  is  to  be  hoped  that  our  government  will  never  again  attempt 
to  shelter  itself  from  responsibility  for  the  enforcement  of  its  treaty  obli- 
gations to  protect  foreigners,  by  alleging  its  own  failure  to  enact  the  laws 
necessary  to  the  discharge  of  those  obligations."  (Proc.  American  Society 
of  Int.  Lazv,  4:  25.)  See  also  excellent  article  by  C.  C.  Hyde,  Proc.  Acad, 
of  Pol  Sci.,  7 :  558. 

13 "  This  department  has  contested  and  denied  the  doctrine  that  a  gov- 
ernment may  set  up  the  judgment  of  one  of  its  own  courts  as  a  bar  to  an 
international  claim,  when  such  judgment  is  shown  to  have  been  unjust  or 
in  violation  of  the  principles  of  international  law."  (Report  of  Mr.  Bayard, 
Sec.  of  State,  to  the  President,  Feb.  26,  1887.  Sen.  Ex.  Doc.  109,  49t'h  Cong., 
2d  Sess.,  Moore,  Digest,  6:  667.)  See  also  The  Betsey,  U.  S.  v.  Great 
Britain,  adjudicated  by  the  mixed  commission  formed  under  Article  7  of 
the  Jay  treaty  of  1794,  Moore,  Int.  Arb.,  .3:  3208,  especially  Commissioner 


REPRESENTATIVE  ORGAN  OF  GOVERNMENT.      19 

lows  that  discussions  of  international  responsibility  can  hardly  be 
fruitful  unless  the  organ  for  discussing  is  itself  free  of  municipal 
restrictions.  Thus,  in  a  protest  to  Great  Britain  against  alleged 
violations  of  neutral  rights  at  sea,  Secretary  of  State  Lansing 
answered  the  British  contention,  that  American  citizens  deeming 
themselves  aggrieved  could  get  relief  in  the  prize  courts,  by  calling 
attention  to  the  restrictions  placed  upon  these  courts  by  orders  in 
Council : 

"  The  United  States  government  feels,"  he  wrote,  "  that  it  cannot  rea- 
sonably be  expected  to  advise  its  citizens  to  seek  redress  before  tribunals 
which  are,  in  its  opinion,  unauthorized  by  the  unrestricted  application  of 
international  law  to  grant  reparation,  nor  to  refrain  from  presenting  their 
claims  directly  to  the  British  government  through  diplomatic  channels."  i* 

This  requirement  that  states  maintain  a  definite  representative 
authority  is,  however,  specifically  evidenced  by  the  authority  of  text 


Pinckney's  opinion  (Ibid.,  3:  3182);  Wheaton's  argument  in  the  Danish 
claims  arbitration,  Moore,  Int.  Arb.,  5 :  4555 ;  Hale's  Report  of  Commission 
formed  under  Article  12  of  the  Treaty  of  Washington,  6:  88,  Moore,  Int. 
Arb.  3:  3209;  Wharton,  Digest,  2:  672;  Moore,  Digest,  6:  695-697;  Cotes- 
worth  and  Powell  Case,  Great  Britain  v.  Colombia,  Moore,  Int.  Arb.,  2: 
208 r ;  Justice  Davis  in  Gushing,  Administrator,  v.  U.  S.,  22  Ct.  cl.  i,  1886; 
Ralston,  International  Arbitral  Law  and  Procedure,  pp.  29,  310;  Borchard, 
op.  cit.,  pp.  197,  342 ;  Dana's  Wheaton,  sec.  391  et  seq.,  note,  p.  483 ;  Bluntschli, 
Le  Droit  International  Codifie,  4th  ed.,  Paris,  1886,  sec.  851 ;  Oppenheim, 
Int.  Law,  2d  ed.,  London,  1912,  2:  557;  Lawrence,  Principles  of  Int.  Law, 
4th  ed.,  p.  479;  Earl  Grey  to  IMr.  Page,  Ambassador  to  Great  Britain,  July 
31,  191S,  United  States  White  Book,  European  War,  No.  2,  p.  182,  par.  9. 
See  also  supra,  note  30. 

1*  U.  S.  White  Book,  European  War  No.  3,  p.  37.  The  force  of  Secre- 
tary Lansing's  argument  was  evidently  felt  by  the  British  prize  courts,  for  a 
few  months  later  the  Judicial  Committee  of  the  Privy  Council  handed  down 
the  decision  of  the  Zamora  which  held  prize  courts  competent  to  apply  inter- 
national law  irrespective  of  conflicting  orders  in  council.  "  It  is  obvious,  how- 
ever, that  the  reason  for  this  rule  of  diplomacy  (that  an  aggrieved  neutral 
should  exhaust  his  remedies  in  belligerent  prize  courts  before  appealing  to 
the  diplomatic  intervention  of  his  own  government)  would  entirely  vanish  if  a 
Court  of  Prize,  while  nominally  administering  a  law  of  international  obli- 
gation, were  in  reality  acting  under  the  direction  of  the  Executive  of 
the  belligerent  Power."  (L.  R.  1916,  2  A.  C.  yy.)  The  difficulty  arising  from 
the  fact  that  even  the  representative  organ  is  necessarily  restricted  by  the 
Constitution  has  been  referred  to  (sec.  4),  but  this  organ  must  be  free  of 
other  municipal  law  restrictions. 


20       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

writers^^  and  by  practice.  Thus  where  no  such  representative 
authority  exists,  or  where  it  exists  but  its  control  is  so  ineffective 
that  it  cannot  in  fact  represent  the  state  recognition  has  usually  been 
withheld  or  regular  diplomatic  relations  have  been  broken.  "  No 
power,"  says  Westlake,  "  would  willingly  try  to  weave  ties  with 
a  rope  of  sand."  ^^ 


15 "  As  a  state  is  an  abstraction  from  the  fact  that  a  multitude  of  in- 
dividuals live  in  a  country  under  a  sovereign  Government,  every  State  must 
have  a  head  as  its  highest  organ,  which  represents  it,  within  and  without 
it's  borders,  in  the  totality  of  its  relations.  .  .  .  The  Law  of  Nations  pre- 
scribes no  rules  as  regards  the  kind  of  head  a  State  may  have.  .  .  .  Some 
kind  or  other  of  a  head  of  the  State  is,  however,  necessary  according  to 
International  Law,  as  without  a  head  there  is  no  State  in  existence,  but 
anarchy."  (Oppenheim,  International  Law,  vol.  i,  sec.  341.)  "  Sovereigns 
as  the  universal  representatives  of  states  can  be  considered  as  having  inde- 
pendently a  personality  under  the  law  of  nations."  (Rivier,  Principes  du 
droit  des  gens,  i:  51,  Moore,  Digest,  i:  17.)  See  also  Phillimore,  Int. 
Law,  3d  ed.,  i :  81 ;  Sec.  of  State  Fish,  Feb.  21,  1877,  Moore,  Digest,  i :  250. 

18  Recognition  and  the  maintenance  of  diplomatic  intercourse  are  dis- 
cretionary with  each  state,  but  by  examining  the  conditions  under  which 
recognition  has  been  accorded  or  relations  broken  we  can  discover  what 
perfection  of  organization  modern  states  actually  regard  as  prerequisite  to 
entry  into  international  intercourse. 

In  recognizing  new  states,  the  primary  consideration  has  been  the  actual 
state  of  independence  of  a  community  of  people  occupying  a  definite  terri- 
tory, but  as  Westlake  points  out,  "  The  recognizing  powers  must  respectively 
be  satisfied  that  the  new  state  gives  sufficient  promise  of  stability  in  its 
government'.  No  power  would  willingly  try  to  weave  ties  with  a  rope  of 
sand."  (Int.  Law,  i:  50.)  (For  practice  in  recognizing-  new  states 
see  Moore,  Digest,  i:  74-119.) 

Thus  the  possession  of  a  stable  government  is  a  prerequisite  to  recog- 
nition of  a  state.  Does  it  follow  that'  if  the  government  of  a  recognized 
state  dissolves  or  undergoes  convulsions  the  state  departs  from  the  family 
of  nations?  Publicists  say  not — but  in  practice  its  membership  is  in  abeyance 
until  a  new  government  is  recognized.  The  nature  of  the  recognition  of  a 
new  government  has  been  much  discussed,  some  asserting  that  it  has  no 
place  in  international  relations  (Hall,  op.  cit.,  p.  20;  Woolsey,  Int.  Law,  p. 
39;  Twiss,  Int.  Law,  i:  21)  or  is  a  mere  formality  (Goebel,  Recognition 
Policy  of  the  U.  S.,  Columbia  University  Studies  in  History,  Economics 
and  Public  Law,  66:  67)  but  in  practice  the  recognition  or  non-recognition 
of  a  government  may  have  important  results,  as  witness  the  American 
policy  toward  the  governments  of  Huerta  in  Mexico  (1914),  Tinoca  in 
Costa  Rica  (1916)  and  Lenin  in  Russia  (1917).  Practice  shows  that  a 
radical  change  in  a  state's  constitution  is  a  matter  of  international  consid- 
eration and  that  the  new  government  must  present  prospects  of  reasonable 


REPRESENTATIVE  ORGAN  OF  GOVERNMENT.      21 

12.  The  President  is  the  Representative  Authority  in  the   United 
States. 
In  the  United   States,  the   President,   acting  through  the  De- 
partment of  State,  is  this  representative  authority. 

"  The  president,"  said  John  Marshall  while  in  Congress,  "  is  the  sole 
organ  of  the  nation  in  its  external  relations,  and  its  sole  representative  with 
foreign  nations.  Of  consequence,  the  demand  of  a  foreign  nation  can  only 
be  made  of  him."  i^ 

"  The  Executive,"  reported  the  Senate  Foreign  Relations  Committee  in 
1897,  "  is  the  sole  mouthpiece  of  the  nation  in  communication  with  foreign 
sovereignties."  1* 

The  same  has  been  reiterated  by  courts,^"  by  commentators,^" 

stability  and  responsibility  before  the  state  can  again  enter  into  ofificial  inter- 
national relations.  The  various  criteria  which  have  been  followed  at 
different  times  for  judging  of  such  stability  and  responsibility  such  as  (i) 
defacto  control,  (2)  legal  continuity  or  legitimacy,  or  (3)  consent  of  the 
members  of  the  state  need  not  detain  us  here.  (For  American  practice 
in  recognition   of  new  governments  see   Moore,   i:    119-164.) 

Finally  even  when  a  recognized  state  has  a  recognized  government  it 
may  still  be  unable  to  maintain  international  relations  if  that  government 
presents  no  definite  authority  able  to  meet  international  responsibilities. 
Because  of  this  lack  the  United  States  under  the  Articles  of  Confederation 
had  difficulty  in  exchanging  diplomatic  officers  with  other  states.  Thus 
Hamilton  said  of  the  Confederation,  "  The  treaties  of  the  United  States, 
under  the  present  constitution,  are  liable  to  the  infractions  of  thirteen  dif- 
ferent legislatures,  and  as  many  different  courts  of  final  jurisdiction,  acting 
under  the  authority  of  those  legislatures.  ...  Is  it  possible  that  foreign  na- 
tions can  either  respect  or  confide  in  such  a  government?"  (Federalist, 
No.  22,  Ford  ed.,  p.  141.)  See  also  remarks  of  James  Wilson  and  Madison 
in  the  Federal  Convention  of  1787,  Farrand,  Records  of  the  Federal  Con- 
vention of  1787,  1 :  426,  513.  Even  after  the  Constitution  was  in  effect  the 
apparent  irresponsibility  of  the  President  for  acts  committed  within  the 
states  violative  of  international  rights  of  foreigners  caused  Italy  to  with- 
draw its  minister.  (Moore,  Digest,  6:  837-841.)  Practice  seems  to  show 
that  states  must  maintain  a  stable  government  with  a  single  definite  repre- 
sentative organ  under  penalty  of  international  ostracism. 

^^  Benton,  Abridgment  of  Debates  of  Congress,  2:  466. 

IS  54th  Cong.,  2d  Sess.,   Sen.  Doc,  No.  56,  p.  21. 

1®  "  As  the  Executive  head  of  the  nation,  the  President  is  made  the  only 
legitimate  organ  of  the  General  Government,  to  open  and  carry  on  cor- 
respondence or  negotiations  with  foreign  nations,  in  matters  concerning  the 
interests  of  the  country  or  of  its  citizens."  Nelson,  J.,  in  Durand  v.  Hollins, 
4  Blatch,  451,  454. 

20  "  Official  communications  involving  international  relations  and  general 
international  negotiations  are  within  the  exclusive  province  of  the  Depart- 


22       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

by  Congress^^  and  by  the  President  himself  in  official  communica- 
tions to  Congress^'  and  to  foreign  nations.-^  The  President's  posi- 
tion as  the  exclusive  or^an  for  communication  with  foreign  nations 


ment  of  State,  at  the  head  of  which  stands  the  Secretary  of  State."  (Wil- 
son and  Tucker,  op.  cit.,  p.  187.)  "A  foreign  minister  here  is  to  correspond 
with  the  Secretary  of  State  on  matters  which  interest  his  nation,  and 
ought  not  to  be  permitted  to  resort  to  the  press.  He  has  no  authority  to 
communicate  his  sentiments  to  the  people  by  publications,  either  in  manu- 
script or  in  print,  and  any  attempt  to  do  so  is  contempt  of  this  Government. 
His  intercourse  is  to  be  with  the  executive  of  the  United  States  only,  upon 
matters  that  concern  his  mission  or  trust'."  (Lee,  Attorney  General,  i  Op. 
74,  1797,  Moore,  Digest,  4:  682.)     See  also  supra,  notes  17,  18. 

21  "  In  1874,  Congress  declared  that  claims  of  aliens  cannot  properly  be 
examined  by  a  committee  of  Congress,  there  being  a  Department  of  this 
Government  in  which  most  questions  of  an  international  character  may  be 
considered — that  which  has  charge  of  foreign  affairs :  that  Congress  cannot 
safely  and  by  piecemeal  surrender  the  advantage  which  may  result  from 
diplomatic  arrangements;  that  this  has  been  the  general  policy  of  the 
Government,  and  Congress  has  not  generally  entertained  the  claims  of 
aliens  and  certainly  should  not  imless  on  the  request  of  the  Secretary  of 
State  (See  Report  No.  498,  Committee  on  War  Claims,  ist  Sess.,  43d  Cong., 
May  2,  1874),"  Moore,  Digest,  6:  608;  Senate  Report,  supra,  note  18. 
Apparently  attempts  to  negotiate  with  foreign  governments  except  under 
authority  of  the  President  is  a  criminal  offense  under  the  Logan  Act,  Jan. 
30,  1799,  Rev.  Stat.,  sec.  5335,  Criminal  Code  of  1909,  Art.  5,  Moore,  Digest, 
4:  4^9.     See  also  infra,  sec.  17. 

22 "  The  Constitution  of  the  United  States,  following  the  established 
usage  of  nations,  has  indicated  the  President  as  the  agent  to  represent 
the  national  sovereignty  in  its  intercourse  with  foreign  powers,  and  to 
receive  all  official  communications  from  them,  .  .  .  making  him,  in  the 
language  of  one  of  the  most  eminent  writers  on  constitutional  law.  '  the 
constitutional  organ  of  communication  with  foreign  states.'"  (President 
Grant,  Message  vetoing  two  joint  resolutions  in  response  to  congratulations 
of  foreign  states  on  the  occasion  of  the  Centennial  exposition,  Richardson, 
op.  cit.,  7:  431.) 

23  " '  But,'  said  he  (Citizen  Genet),  'at  least,  Congress  are  bound  to  see 
that  the  treaties  are  observed.'  I  told  him  no ;  there  were  very  few  cases 
indeed  arising  out  of  treaties,  which  they  could  take  notice  of;  that  the 
President  is  to  see  that  treaties  are  observed.  '  If  he  decides  against  the 
treaty,  to  whom  is  a  nation  to  appeal?'  I  told  him  the  Constitution  had 
made  the  President  the  last  appeal.  lie  made  me  a  bow,  and  said,  that 
indeed  he  would  not  make  me  his  compliments  on  such  a  Constitution,  ex- 
pressed the  utmost  astonishment  at  it,  and  seemed  never  before  to  have  had 
such  an  idea."  (Sec.  of  State  Jefferson,  Moore,  Digest,  4:  680.)  "I  do 
not  refer  to  this   for  the  purpose  of  calling  the  attention   of  the   Imperial 


REPRESENTATIVE  ORGAN  OF  GOVERNMENT.      23 

is  a  well-established  implication  from  the  powers  expressly  delegated 
to  him  by  the  constitution  to  receive  and  to  commission  diplomatic 
officers.^*  But  this  position  is  not  founded  merely  on  the  con- 
stitution. It  has  apparently  acquired  a  certain  foundation  in  in- 
ternational law  through  recognition  by  foreign  nations.  Thus 
foreign  nations  have  habitually  presented  their  claims  to  the  Pres- 
ident through  the  Department  of  State. 

"All  foreign  powers  recognize  it  (the  Department  of  Slate),"  wrote 
Secretary  of  State  Seward,  "  and  transmit  their  communications  to  it, 
through  the  dispatches  of  our  mmisters  abroaa,  or  their  own  diplomatic 
representatives  residing  near  this  Government.  These  communications  are 
submitted  to  the  President,  and,  when  proper,  are  replied  to  under  his  direc- 
tion by  the  Secretary  of  State.  This  mutual  correspondence  is  recorded  and 
preserved  in  the  archives  of  this  Department.  This  is,  I  believe,  the  same 
system  which  prevails  in  the  governments  of  civilized  states  everywhere."  25 

The  only  exception  to  this  rule  appears  to  be  in  matters  of  a 
private  law  nature  litigated  before  the  courts.^"  In  matters  of  in- 
ternational  law   foreign  nations   have   sometimes   been    willing   to 

German  Government  at  this  time  to  the  surprising  irregularity  of  a  com- 
munication from  the  Imperial  German  Embassy  at  Washington  addressed 
to  the  people  of  the  United  States  through  the  newspapers,  but  only,  etc." 
(Secretary  of  State  Bryan  to  Mr.  Gerard,  American  Ambassador  at  Berlin, 
May  13,  1915,  White  Book,  European  War  No.  i,  p.  76.)  See  also  infra, 
sec.  13. 

2* "  The  President  is  the  organ  of  diplomatic  intercourse  of  the  Gov- 
ernment of  the  United  States,  first,  because  of  his  powers  in  connection  with 
the  reception  and  dispatch  of  diplomatic  agents  and  with  treaty  making; 
secondly,  because  of  the  tradition  of  executive  power  adherent  to  his  office." 
(Corwin,  The  President's  Control  of  Foreign  Relations,  p.  33.)  See  also 
Wright,  Columbia  Lazv  Rev.,  20:  131. 

25  Mr.  Seward,  Secretary  of  State,  to  Mr.  Dayton,  Minister  to  France, 
June  27,  1862,  Moore,  Digest,  4:  781.  See  also  Borchard,  op.  cit.,  p.  355. 
Congressional  Committees  may  not  hear  such  claims,  supra,  note  22.  "  The 
Department  of  State  has  explained  that  claims  against  the  Government  can 
be  presented  only  in  one  of  two  ways:  (1)  Either  by  the  claimant's  availing 
himself  directly  of  such  judicial  or  administrative  remedy  as  the  domestic 
law  might  prescribe;  or  (2)  in  the  absence  of  such  remedy,  if  the  claimant 
was  an  alien,  by  his  government  '  formally  presenting  the  claim  as  an 
international  demand  to  be  adjusted  through  the  diplomatic  channel.' " 
(Acting  Secretary  of  State  Davis  to  Baron  de  Fava,  Italian  Minister,  July 
9,  1884,  Moore,  6:  608.) 

2s  Foreign  states  are  entitled  to  bring  suit  in  United  States  courts,  state 
or  federal  (Mexico  v.  Arrangoiz.  11  How.  Prac.  i,  N.  Y.  1855;  King  of 
Prussia  v.  Knpper,  22  Mo.  550,   1856;   King  of  Spain  v.  Oliver,   i   Peter's 


24       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

permit  trial  of  the  issue  in  the  courts  first,"  but  they  have  always 
reserved  the  right  to  carry  the  case  before  the  President  (through 
the  Department  of  State)  later,  if  they  think  the  decision  unjust.^* 
In  important  matters  foreign  governments  have  refused  to  follow 
a  suggestion  for  settlement  in  the  courts. ^^     They  have  been  equally 

C.  C.  217,  276,  1810;  The  Sapphire,  11  Wall.  164,  1870),  and  the  United  States 
Court  of  Claims  has  a  limited  jurisdiction  of  claims  against  the  government. 
(Borchard,  op.  cit.,  164.)     See  also  Wesflake,  op.  cit.,  i:  250. 

27  Supra,  note  6. 

28  Supra,  note  13. 

29  See  suggestions  for  judicial  settlement  of  the  California-Japanese 
School  and  Land  Ownership  questions.  (Corwin,  op.  cit.,  p.  108;  H.  M. 
Dilla,  Mich.  L.  R.,  12:  583.)  In  a  note  of  March  16,  1916,  with  reference 
to  the  Appam,  a  British  vessel  captured  by  Germany  and  brought  to  a 
United  States  port,  the  German  government  said :  "The  opinion  of  the  De- 
partment of  State  that  the  American  courts  must  decide  about  the  claims 
of  the  British  Shipping  Company  is  incompatible  with  the  treaty  stipulations. 
It  is,  therefore,  respectfully  requested  that  the  legal  steps  before  an  American 
court  should  be  suspended."  The  American  answer  of  April  7,  1916,  "  holding 
the  view  that  Article  19  is  not  applicable  to  the  case  of  the  Appam,  this 
Government  does  not  consider  it  necessary  to  discuss  the  contention  of  the 
Imperial  Government  that  under  Article  19  American  courts  are  without 
jurisdiction  to  interfere  with  the  prize,"  appears  satisfactory.  It  is,  there- 
fore, unfortunate  that  the  note  added  the  following  inadmissible  argument. 
"  Moreover,  inasmuch  as  the  Appam  has  been  libeled  in  the  United  States 
District  Court  by  the  alleged  owners,  this  Government,  under  the  American 
system  of  government,  in  which  the  judicial  and  executive  branches  are 
entirely  separate  and  independent,  could  not  vouch  for  a  continuance  of  the 
status  quo  of  the  prize  during  the  progress  of  the  arbitration  proposed  by  the 
Imperial  Government.  The  United  States  Court,  having  taken  jurisdiction 
of  the  vessel,  that  jurisdiction  can  only  be  dissolved  by  judicial  proceedings 
leading  to  a  decision  of  the  court  discharging  the  case — a  procedure  which 
the  executive  cannot  summarily  terminate."  However  correct  this  may  be 
from  the  standpoint  of  constitutional  law  it  could  not  justify  a  failure  to 
meet  international  responsibilities.  (Supra,  note  13.  White  Book,  European 
War,  No.  3,  pp.  340,  343.) 

The  United  States  has  been  similarly  reluctant  to  leave  important 
matters  of  international  law  to  foreign  courts.  In  a  note  of  June  24,  1915, 
with  reference  to  indemnity  for  destruction  of  the  United  States  vessel  Wil- 
liam P.  Frye,  by  Germany,  Secretary  Lansing  wrote,  "  The  Government 
of  the  United  States,  therefore,  suggests  that  the  Imperial  German  Govern- 
ment reconsider  the  subject  in  the  light  of  these  considerations,  and  because 
of  the  objections  against  resorting  to  the  Prize  Court  the  government  of 
the  United  States  renews  its  former  suggestion  that  an  effort  be  made  to 
settle  this  claim  by  direct  diplomatic  negotiations."  (Op.  cit..  No.  2,  p.  187; 
see  also  note  of  April  28,  1915,  op.  cit.,  No.  i,  p.  88.) 


REPRESENTATIVE  ORGAN  OF  GOVERNMENT.  25 

unresponsive  to  suggestions  for  a  discussion  of  international  claims 
with  the  state  governments  within  the  United  States.^"  They  have 
insisted  upon  discussion  with  the  President,  through  the  Depart- 
ment of  State/^  have  accepted  the  President's  interpretation  of 
the  responsibilities  as  the  voice  of  the  nation^^  and  the  United 
States  has  acquiesced.*' 

Thus,  though  the  Presidency  is  primarily  an  office  under  the 
constitution,  it  is  also  an  office  with  distinctive  functions  and,  it 
may  be  added,  enjoying  privileges^*  under  international  law.     Does 


30  See  Louisiana  Lynching  Cases,  U.  S.  For.  Rel.,  1891,  pp.  665-667, 
671-672,  674-686,  712-713,  Ibid.,  1901,  p.  253;  Moore,  Digest,  6:  837.  "We 
should  not  be  obliged  to  refer  those  who  complain  of  a  breach  of  such 
an  obligation  to  governors  of  states  and  county  prosecutors  to  take  up  the 
procedure  of  vindicating  the  rights  of  aliens  which  have  been  violated  on 
American  soil."  (Taff,  Proc.  Am.  Soc.  of  Int.  Law,  4:  44.)  The  United 
States  has  taken  a  similar  attitude  as  to  claims  against  foreign  states. 
"This  government  cannot  with  propriety  apply  to  the  authorities  of  Yucatan 
for  redress,  that  province  constituting  only  a  part  of  the  Republic  of 
Mexico,  which  is  responsible  in  the  last'  resort  for  all  injuries  which  the 
judicial  tribunals  may  have  neglected  or  may  have  been  incompetent  to 
redress."  (Mr.  Calhoun,  Secretary  of  State  to  Mr.  Holmes,  Nov.  20,  1844, 
Moore,  Digest,  4:  682.) 

31  Su{>ra,  note  26.  If  some  international  organ  of  settlement  is  utilized 
it  must  of  course  be  on  the  basis  of  express  agreement.  In  the  absence  of 
treaty,  arbitration  is  voluntarj'.     See  Wright,  Columbia  Law  Rev.,  20:   146. 

32  Foreign  states  have  insisted  that  executive  interpretations  of  treaties 
are  binding  even  though  not  submitted  to  the  Senate  (See  controversies  with 
reference  to  notes  explaining  Mexican  Peace  Treaty  of  1848  and  Clayton- 
Bulwer  treaty  with  England,  1850,  Moore,  Digest,  3:  138;  5:  205;  Wright, 
Minn.  Law  Rev.,  4:  22;  Crandall,  Treaties,  their  Making  and  Enforce- 
ment, 1916,  pp.  85,  381)  and  that  the  President's  messages  to  Congress  are 
subject  to  mternational  cognizance.  (See  President  Jackson's  threat  of 
reprisals  against  France,  Dec,  1834,  and  President  Taylor's  comments  on  the 
Hungarian  revolt  of  1848,  Message,  March  18,  1850,  and  protest's  thereat, 
Moore,  Digest,  7 :  125 ;  i :  222.    See  also  infra,  sees.  19,  20. 

33  In  the  various  lynchings  of  aliens,  especially  Italians,  the  govern- 
ment has  paid  the  indemnities  demanded.  Though  expressly  stated  to  be 
gratuities,  the  uniform  practice  seems  to  indicate  a  sense  of  responsibility. 
(Moore,  Digest,  6:  837.)  The  United  States  has  sometimes  refused  to  ac- 
cept presidential  interpretations  of  responsibility.     Infra,  sees.  34-38. 

3*  The  President  apparently  enjoys  sovereign's  immunities  under  inter- 
national law.  See  Satow,  Diplomatic  Practice,  1917,  i:  6;  Willoughby, 
Constitutional  Law,  2:  1300,  et  seq.;  Qppenheim,  op.  cit.,  sec.  3S6. 


26        THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

it  follow  that  an  attempt  to  alter  the  international  functions  of  the 
office  by  constitutional  amendment  would  involve  a  violation  of 
international  law?  We  believe  not.  Such  an  amendment  would 
be  a  matter  for  international  cognizance  but  no  complaint  would  be 
justified  if  a  new  organ  capable  of  performing  the  international 
functions  of  the  president  were  substituted.  International  law  is 
concerned  only  with  the  existence  of  a  definite  organ  capable  of 
giving  satisfaction  to  demands  based  on  international  law  or  treaty, 
not  with  its  precise  form.^^  Doubtless  the  authority  might  be  a 
council  or  a  congress  though  there  is  an  unquestionable  tendency 
for  international  law  to  favor  organs  for  international  communica- 
tion of  the  traditional  form,  that  is  the  Chief  Executive  acting 
through  a  foreign  minister.^"  However,  until  the  constitution  has 
been  amended  to  this  efifect,  and  the  change  has  been  recognized 
by  foreign  nations,  they  will  be  entitled  to  look  to  the  President  as 
the  authority  to  whom  they  may  present  their  claims  and  from 
whom  they  may  expect  satisfaction  according  to  the  standard  of 
international  law  and  treaty. 

Now  there  is  danger  of  misunderstanding.  This  does  not  mean 
that  foreign  nations  are  entitled  to  consider  the  President  com- 
petent to  commit  the  United  States  to  all  sorts  of  international  re- 
sponsibilities. A  treaty  or  any  other  international  obligation  is 
valid  only  when  the  consent  of  the  state  is  tacitly  or  expressly 
given,^^  and  to  determine  the  reality  of  consent  the  constitutional 
law  of  the  state  must  be  appealed  to.  Only  the  organs  there 
designated,  each  within  its  constitutional  competence,^^  can   bind 


•''■'■'  Ilall,  op.  cit.,  p.  20,  supra,  note  15. 

*6  Supra,  notes  22,  25. 

37  Wilson  and  Tucker,  op.  cit.,  p.  213;  Flail,  op.  cit.,  sec.  108;  Wright, 
Minn.  Law  Rev.,  4:  17. 

3«Crandall,  op.  cit.,  sec.  i,  2:  Wheaton,  Dana  ed.,  sec.  265;  Borchard,  op. 
cit.,  pp.  183-184,  says,  "The  power  of  officers  of  the  government,  superior 
and  inferior,  to  bind  the  government  is  limited  by  their  legal  authority  to 
enter  into  such  obligations.  This  authority  is  generally  strictly  construed. 
The  President  of  a  country  cannot  legally  grant  or  alter  the  terms  of  con- 
cessions to  foreigners,  if  the  constitutional  law  of  the  country  requires  the 
approval    of   Congress    for   such    acts.     Those   dealing   with   agents    of   the 


REPRESENTATIVE  ORGAN  OF  GOVERNMENT.  27 

the  nation.  But  once  the  treaty  or  other  commitment  is  made 
by  the  proper  constitutional  authority,  the  President  is,  in  the 
absence  of  express  treaty  provision  to  the  contrary ,^^  the  authority 
to  whom  they  may  look  for  its  execution. 


state  are  ordinarily  bound  by  their  actual  authority,  and  not,  as  in  private 
law,  by  their  ostensible  authority.  But  in  the  Trumbull  case  (Chile  v. 
U.  S.,  Aug.  7,  1892,  Moore,  Int.  Arb.  3569)  the  apparent  authority  of  a 
diplomatic  officer  to  contract  was  held  sufficient  to  bind  his  government,  and  in 
the  Metzger  case  (U.  S.  v.  Haiti,  Oct.  18,  1899,  For.  Rel.  262)  Judge  Day 
expressed  the  opinion  that  the  '  limitations  upon  official  authority,  undisclosed 
at  the  time  to  the  other  government,'  do  not  '  prevent  the  enforcement  of  a 
diplomatic  agreement.'"  See  also  Wright,  Columbia  Laiv  Rev.,  20:  121-122. 
Infra,  sec.  24. 

3»  For    treaty    provisions    designating    other    organs    of    government    as 
responsible,  see  Wright,  Columbia  Law  Rev.,  20:  123-124, 


CHAPTER  III. 

Attributes  of  the  National  Representative  Organ  under 
International  Law. 

A.  Sole  Agency  for  Foreign  Communication. 

13.  Foreign  Representatives  may  officially  communicate  with  the 
nation  only  through  the  President  or  his  Representatives. 

The  position  of  the  President  as  the  representative  organ  impHes 
that  foreign  nations  are  entitled  to  present  their  claims  to  him  but 
it  also  implies:  (a)  that  they  can  communicate  with  the  nation 
through  him  alone  and  (b)  that  they  may  take  cognizance  of  all  his 
official  acts.  Efiforts  of  foreign  governments  to  communicate  with 
organs  of  the  United  States  other  than  the  President  or  his  re- 
presentatives, with  private  American  citizens  or  with  the  American 
people  directly  have  been  protested  by  the  President,  while  efforts 
of  American  organs  of  government  or  self-constituted  missions  to 
communicate  with  foreign  nations  have  been  vetoed  or  prohibited 
by  law.  Thus  in  1793  when  Citizen  Genet  sought  to  obtain  an 
exequatur  for  a  consul  whose  commission  was  addressed  to  the 
"  Congress  of  the  United  States,"  Secretary  of  State  Jefferson  told 
him  that  "  the  President  was  the  only  channel  of  communication 
between  the  United  States  and  foreign  nations  "  and  refused  to 
issue  an  exequatur  until  the  commission  was  correctly  addressed.^ 
In  1833  Secretary  of  State  Livingston  sent  letters  to  the 
Charges  of  the  United  States  in  various  capitals  instructing  them  to 
notify  the  foreign  minister  that  "  all  communication  made  directly 
to  the  head  of  our  Executive  Government  should  be  addressed  *  to 
the  President  of  the  United  States  of  America'  without  any  other 
addition."  He  referred  to  the  fact  that  the  style  of  address  "to 
the    President   and    Congress    of   the   United    States"    which   had 

1  Moore,  Digest,  4 :  680. 

28 


NATIONAL  REPRESENTATIVE  ORGAN.  29 

been  continued  since  the  old  Confederation  was  no  longer  proper,^ 
In  1874  Congress  itself  passed  a  resolution  refusing  to  consider 
foreign  claims,  "there  being  a  department  of  the  government  in 
which  most  questions  of  an  international  character  may  be  con- 
sidered." ^  Political  correspondence  with  American  citizens  by  the 
resident  diplomatic  representative  of  a  foreign  nation  has  usually 
resulted  in  a  demand  for  the  recall  or  in  the  dismissal  of  the  rep- 
resentative as  in  the  case  of  the  British  Minister  Lord  Sackville  who 
was  led  to  communicate  his  views  of  the  impending  presidential 
election  to  an  American  correspondent.*  Foreign  ministers  who 
have  tried  to  talk  over  the  head  of  the  government  directly  to  the 
people  have  been  sharply  rebuked.  The  government  requested  the 
recall  of  Citizen  Genet  whose  misconduct  in  that  direction  became 
notorious^  and  in  the  later  case  of  the  Spanish  minister  Yrujo, 
Attorney  General  Lee  said:° 

"  A  foreign  minister  here  is  to  correspond  with  the  Secretary  of  State 
on  matters  which  interest  his  nation  and  ought  not  to  be  permitted  to  resort 
to  the  press.  He  has  no  authority  to  communicate  his  sentiments  to  the 
people  by  pubHcations.  either  in  manuscript  or  in  print,  and  any  attempt  to 
do  so  is  contempt  of  this  government.  His  intercourse  is  to  be  with  the 
executive  of  the  United  States  only  upon  matters  that  concern  his  mission 
or  trust." 

More  recently  Ambassador  Bernstorfif's  newspaper  warning  to 
American  citizens  to  keep  off  of  the  Lusitania  was  referred  to  by 
Secretary  of  State  Lansing  as  "  the  surprising  irregularity  of  a 
communication  from  the  Imperial  German  Embassy  at  Washington 
addressed  to  the  people  of  the  United  States  through  the  news- 
papers." ^ 


2  Corwin,  op.  cit.,  p.  48,  citing  54th  Cong.,  2d  Sess.,  Sen.  Doc.  No.  56, 
p.  9,  footnote,  and  J.  Q.  Adams,  Memoirs,  4 :   17-18. 

3  Magoon,  Reports,  1902,  p.  340,  Moore,  Digest,  6 :  608.     See  also  supra, 
Chap.  II,  note  21. 

•*  Pres.  Cleveland,  Annual  Message,  Dec.  3,  1888,  Richardson,  Messages 
of  the  Presidents,  8:  780,  Moore,  Digest,  4:  537-548. 

5  Moore,  Digest,  4:  487. 

6  Lee,  Att.  Gen.,  i  Op.  74  (1797),  Moore,  Digest,  4:  682. 

■^  Mr.    Bryan,    Sec.   of   State,   to   Mr.   Gerard,    Ambassador   to   Germany, 
May  13,  1915,  U.  S.  White  Book,  European  War,  No.  i,  p.  76. 


30       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

14.  National  Organs  of  Government  other  than  the  President  or 

his  Representatives  may  not  communicate. 
The  United  States  has  hkewise  taken  steps  to  prevent  its  organs 
of  government  other  than  the  President,  from  communicating  with 
foreign  governments.  President  Grant's  veto  of  two  resolutions 
passed  by  Congress  in  response  to  congratulations  on  the  Centennial 
Exposition  of  1876  is  typical  of  the  fate  of  such  resolutions  of 
Congress.  "The  Constitution  of  the  United  States,"  wrote  Pres- 
ident Grant,  "  following  the  established  usage  of  nations,  has  in- 
dicated the  President  as  the  agent  to  represent  the  national  sover- 
eignty in  its  intercourse  with  foreign  powers."  ^ 

15.  National  and  State  Laws  subject  to  International  Cognisance, 
There  appears,  however,  to  be  an  exception  to  this  rule  in  the 

cognizance  which  foreign  nations  take  of  state  or  national  laws. 
In  the  states,  statutes  usually  become  effective  upon  signature  by 
the  governor,  or  if  passed  over  his  veto,  upon  signature  by  the 
Clerk  of  the  last  House  of  the  Legislature  to  act.  Sometimes  there 
is  provision  for  official  publication,  sometimes  not,  but  there  is  never 
requirement  for  formal  communication  to  foreign  nations  through 
the  President  of  the  United  States.^  Yet  foreign  nations  have 
taken  cognizance  of  such  statutes  deemed  to  be  in  violation  of 
their  rights  under  international  law  or  treaty,  as  illustrated  by 
Japanese  protests  at  anti-alien  legislation  in  California  and  other 
states.^"  The  United  States  has  itself  recognized  that  state  laws 
are  subject  to  international  cognizance  by  occasionally  concluding 
treaties,  the  operation  of  certain  clauses  of  which  is  made  de- 
pendent upon  state  law.  Thus  article  VII  of  the  treaty  of  1853 
with  France  allowed  French  citizens  to  possess  land  on  an  equality 


8  Richardson,  op.  cit.,  7:  431;  supra,  sec.  12,  infra,  sec.  202. 

0  Field  V.  Clark,  143  U.  S.  649  (1892),  appended  note.  Finley  and 
Sanderson,  The  Am.  Executive  and  Executive  Methods,  N.  Y.,  1908,  p.  81 ; 
Reinsch,  Am.  Legislatures  and  Legislative  Methods,  N.  Y.,  1913,  p.  142. 

1°  On  controversy  as  to  the  rights  of  Japanese  School  Children  in  Cali- 
fornia, 1906,  see  E.  Root,  /1m.  Jl.  of  Int.  Law,  i:  273  and  editorials,  i:  150, 
449;  Corwin,  National  Supremacy,  1913,  p.  217.  On  controversy  as  to 
Japanese  right  to  hold  land,  1913,  and  since,  see  Editorial,  Am.  Jl.  Int.  Law, 
8:  571,  Moore,  Principles  of  Am.  Dip.,  p.  191,  and  Corwin,  op.  cit.,  p.  232, 
Am.  Year  Book,  1917,  p.  48. 


NATIONAL  REPRESENTATIVE  ORGAN.  31 

with  citizens  "  in  all  states  of  the  Union  where  existing  laws  permit 
it,  so  long  and  to  the  same  extent  as  the  said  laws  shall  remain  in 
force."  " 

Acts  or  resolutions  of  Congress  become  effective  upon  signature 
by  the  President,  or  if  passed  over  his  veto,  upon  signature  by  the 
Clerk  of  the  last  House  of  Congress  to  act.^^  Amendments  to 
the  Federal  Constitution  become  effective  upon  proclamation  by 
the  Secretary  of  State.^^  Treaties  become  effective  as  domestic 
law  upon  proclamation  by  the  President,  but  as  between  nations 
they  are  effective  from  signature  if  ratifications  are  subsequently 
exchanged.'^*     Only  in  the  case  of  treaties  is  there  any  official  proc- 


11  See  also  Art.  IV  of  the  treaty  of  1854  with  Great  Britain  by  which  "  the 
Government  of  the  United  States  further  engages  to  urge  upon  the  state 
governments  to  secure  to  the  subjects  of  Her  Britannic  Majesty  the  use  of 
the  several  state  canals  on  terms  of  equality  with  the  inhabitants  of  the 
United  States."  By  Art.  V  of  the  treaty  of  peace  with  Great  Britain  of  1783 
it  is  agreed  that  "  Congress  shall  earnestly  recommend  it  to  the  legislatures 
of  the  respective  states,  to  provide  for  the  restitution  of  the  estates,"  etc., 
of  the  Loyalists. 

12  Rev.  Stat.,  sec.  204,  amended  Dec.  28,  1874,  18  Stat.,  294,  sec.  2, 
Comp.  Stat.,  sec.  302,  and  supra,  note  9.  The  Secretary  of  State  is  required 
to  furnish  copies  of  valid  resolutions  and  acts  of  Congress  and  treaties  to 
the  Congressional  Printer  "  as  soon  as  possible "  after  they  have  become 
"law."     Rev.  Stat.,  sec.  308. 

13  Rev.  Stat'.,  sec.  205,  Comp.  Stat.,  sec.  303. 

14  Rev.  Stat.,  sec.  2J0,  Comp.  Stat.,  sec.  308.  Treaties  must  be  published 
in  one  newspaper  in  the  District  of  Columbia  to  be  designated  by  the 
Secretary  of  State,  Act  July  31,  1876,  19  Staf.,  105,  Comp.  Stat.,  sec.  7184. 
"  It  is  undoubtedly  true  as  a  principle  of  international  law,  that,  as  re- 
spects the  rights  of  either  government  under  it,  a  treaty  is  considered  as 
concluded  and  binding  from  the  date  of  its  signature.  In  this  regard  the  ex- 
change of  ratifications  has  a  retroactive  effect,  confirming  the  treaty  from 
its  date.  (Wheat,  Int.  Law,  by  Dana,  336.)  But  a  different  rule  prevails 
where  the  treaty  operates  on  individual  rights.  ...  In  so  far  as  it  affects 
them  it  is  not  considered  as  concluded  until  there  is  an  exchange  of  ratifica- 
tions. ...  In  this  country  a  treaty  is  something  more  than  a  contract,  for 
the  federal  constitution  declares  it  to  be  the  law  of  the  land.  If  so,  before 
it  can  become  a  law,  the  Senate,  in  whom  rests  the  authority  to  ratify  it, 
must  agree  to  it.  But  the  Senate  are  not  required  to  adopt  or  reject'  it  as  a 
whole,  but  may  modify  or  amend  it,  as  was  done  with  the  Treaty  under 
consideration.  As  the  individual  citizen,  on  whose  rights  of  property  it  op- 
erates, has  no  means  of  knowing  anything  of  it  while  before  the  Senate, 
it  would  be  wrong  in  principle  to  hold  him  bound  by  it,  as  the  law  of  the 
land,  until  it  was  ratified  and  proclaimed."     Haver  v.  Yaker,  9  Wall.,  2,2. 


32       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

lamation  by  the  President,  yet  all  of  these  instruments,  declared 
supreme  law  by  article  VI  of  the  Constitution,  are  subject  to  inter- 
national cognizance  immediately  upon  becoming  effective.^^  For- 
eign nations,  in  fact,  always  taken  cognizance  of  acts  of  Congress 
deemed  to  be  in  violation  of  their  rights  under  international  law 
or  treaty  as  did  China  of  the  exclusion  acts^^  and  Great  Britain 
of  the  Panama  Canal  tolls  act  of  1911.^'''  In  the  latter  case  Secre- 
tary of  State  Knox  maintained  that  such  protest  was  not  proper 
until  action  under  the  statute  had  actually  impaired  British  rights 
or  as  least  until  executive  proclamation  to  give  effect  to  the  statute 
had  issued  but  his  view  does  not  seem  to  have  been  accepted.  The 
British  ambassador  replied :  ^^ 

"  His  Majesty's  government  feel  bound  to  express  their  dissent.  They 
conceive  that  international  law  or  usage  does  not  support  the  doctrine  that 
the  passing  of  a  statute  in  contravention  of  a  treaty  right  affords  no  ground 
of  complaint  for  the  infraction  of  that  right,  and  that  the  nation  which  holds 
that  its  treaty  rights  have  been  so  infringed  or  brought  into  question  by  a 
denial  that  they  exist,  must,  before  protesting  and  seeking  a  mean-s  of  de- 
termining the  point  at  issue,  wait  until  some  further  action  violating  those 
rights  in  a  concrete  instance  has  been  taken." 

So  also  foreign  nations  enjoying  most  favored  nation  com- 
mercial privileges  by  treaty  with  the  United  States,  have  always 
applied  for  the  advantages  assured  by  such  treaties  upon  the  taking 
effect  of  any  act  or  treaty  which  gives  a  favor  to  other  nations. 
Thus  Germany  and  other  countries  applied  under  most  favored 
nation  clauses  for  a  reduction  of  the  tonnage  dues  on  their  vessels 
upon  passage  of  the  act  of  1884  which  reduced  tonnage  dues  upon 
vessels    from    specified    ports    in    the    western    hemisphere,"    and 


15  Infra,  sec.  22. 

10  Chinese  Protests  against  Act  of  Oct.  i,  1888,  see  U.  S.  For.  Rel.,  1889, 
1 15-150,  Ibid.,  1890,  177,  206,  210-219,  228-230;  against  Act  of  May  5,  1892, 
see  Ihid.,  1892,  106,  118,  119,  123,  126,  134-138,  145,  147-155,  158,  cited  Moore. 
Digest,  4:  198,  202. 

1^  Mr.  Innes,  Charge  d'Affaires  of  Great  Britain,  to  Secretary  of  State 
Knox,  July  8  and  Aug.  27,  1912,  Diplomatic  History  of  the  Panama  Canal, 
63d  Cong.,  2d  Sess.,  Sen.  Doc,  No.  474,  pp.  82-83. 

18  Ihid.,  p.   loi. 

19  Report  of  Mr.  Bayard,  Sec.  of  State,  to  the  President,  Jan.  14,  1889, 
50  Ccng.,  2d  Sess.,  H.  Ex.  Doc,  No.  74,  Moore,  Digest,  5:  289. 


NATIONAL  REPRESENTATIVE  ORGAN.  33 

Switzerland  gained  recognition  of  her  claim  for  an  application  of 
the  most  favored  nation  clause  in  her  treaty  of  1855  upon  the 
conclusion  of  a  treaty  in  1898  by  which  the  United  States  had 
given  commercial   favors  to  France.^" 

16.  Legislative  Expressions  of  Opinion,  not  of  International  Cog- 
nisance. 

Though  all  acts,  prima  facie  law,  are  subject  to  international 
cognizance  without  transmission  through  the  President,  whether 
they  originate  in  state  constitutional  or  legislative  provisions  or  in 
national  constitutional,  legislative  or  treaty  provisions,  this  is  not 
true  of  legislative  resolutions  not  law.  Thus  resolutions  of  a  single 
house  of  congress  or  concurrent  resolutions  not  submitted  to  the 
President  are  not  law  according  to  the  Constitution  and  have  not 
been  noticed  by  foreign  nations. ^^  This  has  been  expressly  held 
by  the  courts  with  reference  to  such  resolutions  purporting  to 
interpret  treaties. ^^     Thus  the  houses  of  Congress  have  been  able 


20  Moore,  Digest,  5:  283-285. 

21  Secretary  of  State  Seward  wrote  Mr.  Daj'ton,  the  minister  to  France, 
with  reference  to  a  House  Resolution  declaring  "  that  it  does  not  accord 
with  the  policy  of  the  United  States  to  acknowledge  a  monarchical  govern- 
ment erected  on  the  ruins  of  any  Republican  government  in  America,  under 
the  auspices  of  any  European  power,"  reference  being  to  the  Maximilian 
government  in  Mexico :  "  This  is  a  practical  and  purely  Executive  question, 
and  the  decision  of  it  constitutionally  belongs  not  to  the  House  of  Repre- 
sentatives, nor  even  to  Congress,  but'  to  the  President  of  the  United  States. 
.  .  .  While  the  President  receives  the  declaration  of  the  House  of  Repre- 
sentatives with  the  profound  respect  to  which  it  is  entitled,  as  an  exposition 
of  its  sentiments  upon  a  grave  and  important  subject,  he  directs  that  you 
inform  the  government  of  France  that  he  does  not  at  present  contemplate 
any  departure  from  the  policy  which  this  government  has  hitherto  pursued  in 
regard  to  the  war  which  exists  between  France  and  Mexico.  It  is  hardly 
necessary  to  say  that  the  proceeding  of  the  House  of  Representatives  was 
adopted  upon  suggestions  arising  within  itself,  and  not  upon  an}^  com- 
munication of  the  Executive  department;  and  that  the  French  Government 
would  be  seasonably  appraised  of  any  change  of  policy  upon  this  subject 
which  the  President  might  at  any  future  time  think  it  proper  to  adopt." 
Corwin,  op.  cit.,  p.  42,  citing  McPherson's  History  of  the  Rebellion,  pp. 
349-350. 

22 "  There  is,"  said  the  Supreme  Court  in  refusing  to  apply  an  amend- 
ment to  which  the  Indians  had  not  consented,  "  something  which  shocks 
the  conscience  in  the  idea  that  a  treaty  can  be  put  forth  as  embodying  the 


34       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

to  pass  resolutions  on  such  questions  as  Irish  independence  without 
arousing  international  controversy.^^  So  also  a  concurrent  resolu- 
tion could  not  be  made  effective  to  denounce  a  treaty.  The  effort 
of  the  Senate  to  incorporate  a  reservation  in  the  Peace  treaty  of 
1919  giving  a  concurrent  resolution,  this  effect  would  have  proved 
futile.  The  treaty,  not  being  able  to  amend  the  Constitution, 
could  not  make  a  concurrent  resolution  a  law  of  either  international 
or  domestic  effect.^* 

17.  Self-Constituted  Missions  Forbidden. 

To  prevent  private  negotiations  with  foreign  nations,  the  Logan 

Act  of   1799  was  passed,  after  the  attempt  to  make  peace  with 

France  of  the   self-constituted   mission    of   Dr.   George   Logan,   a 

Philadelphia  Quaker,  had  annoyed  the  government.     The  statute 

provides  a  fine  of  up  to  $5,000  and  imprisonment  up  to  six  months 

for  every  citizen  of  the  United  States :  ^^ 

"  Who  without  the  permission  or  authority  of  the  government,  directly 
or  indirectly,  commences  or  carries  on  any  verbal  or  written  correspondence 
or  intercourse  with  any  foreign  government,  or  an  officer  or  agent  thereof, 
with  an  intent  to  influence  the  measures  or  conduct  of  any  foreign  gov- 
ernment, or  of  any  officer  or  agent  thereof,  in  relation  to  any  disputes  or 
controversies  with  the  United  States,  or  to  defeat  the  measures  of  the  gov- 
ernment of  the  United  States;  and  every  person,  being  a  citizen  of,  or 
resident  within  the  United  States,  and  not  duly  authorized,  who  counsels, 
advises  or  assists  in  any  such  correspondence  with   such   intent." 


terms  of  an  arrangement  with  a  foreign  power  or  an  Indian  tribe,  a  material 
provision  of  which  is  unknown  to  one  of  the  contracting  parties,  and  is  kept 
in  the  background  to  be  used  by  the  other  only  when  the  exigency  of  a 
particular  case  may  demand  it."  N.  Y.  Indians  v.  U.  S.,  170  U.  S.  i  (1898). 
The  Supreme  Court  said  in  reference  to  a  joint  resolution  passed  by  a 
majority  of  the  Senate  stating  the  purpose  of  the  Senate  in  ratifying  the 
treaty  annexing  the  Philippines:  "We  need  not  consider  the  force  and  effect 
of  a  resolution  of  this  sort.  .  .  .  The  meaning  of  the  treaty  cannot  be  con- 
trolled by  subsequent  explanations  of  some  of  those  who  may  have  voted 
to  ratify  it."  Justice  Brown  concurring  said :  "  It  cannot  be  regarded  as 
part  of  the  treaty  since  it  received  neither  the  approval  of  the  President  nor 
the  consent  of  the  other  contracting  power."  Fourteen  Diamond  Rings  v. 
U,  S.,  183  U.  S.  176   (1901),  Moore,  Digest,  5:  210. 

23  See  House  Resolution  on  Ireland,  March  4,  1919,  Senate  Resolution, 
June  6,  1019,  and  proposed  15th  reservation  to  the  Treaty  of  Versailles, 
passed  by  a  majority  of  the  Senate  March  18,  1920.    Infra,  sec.  190. 

2*  Infra,  sec.  62. 

2SRev.  Stat.,  sec.  5335,  Moore,  Digest,  4:  449. 


NATIONAL  REPRESENTATIVE  ORGAN.  35 

This  act  expressly  excepts  application  by  American  citizens  to 
foreign  government  for  redress  of  injuries,  and  in  general  presen- 
tation of  claims  by  an  individual  is  not  considered  a  violation  of 
the  principle  that  the  representative  organs  of  government  com- 
municate officially  only  with  the  representative  organs  of  other 
governments.  However,  in  practice  the  department  of  state  in 
the  United  States  and  the  foreign  office  in  other  states  generally 
refuse  to  consider  claims  not  officially  presented  by  the  claimant's 
government.^'' 

1 8.  Missions  of  De  Facto  Governments,  Unofficially  Received. 
One  other  exception  is  recognized  in  the  unofficial  reception  of 

agents  of  belligerent  communities.  Thus  the  British  foreign 
Secretary  communicated  unofficially  with  Mason  and  Slidell,  the 
Confederate  emissaries  in  England,^^  and  the  President  of  the 
United  States  communicated  unofficially  with  representatives  from 
South  Africa  after  the  proclamation  of  annexation  by  Great  Britain 
had  made  the  status  of  that  country  one  of  rebellion.'^  Such 
unofficial  communication  with  representatives  of  de  facto  govern- 
ments is  justified  by  the  right  of  foreign  states  to  take  measures 
for  protecting  their  citizens  in  a  region  outside  the  actual  control 
of  the  de  jure  government,  and  is  not  a  real  exception  to  the  rule.-* 

B.  All  Acts  of  the  President  Subject  to  International 
Cognisance. 

19.  Communications  of  the  President  to  Congress. 

The  President's  representative  character  also  implies  that  for- 
eign nations  are  entitled  to  take  cognizance  of  all  his  official  utter- 


2G  Moore,  Digest,  6:  607-610,  supra,  note  3. 

27  Moore,  Digest,  i :  209. 

-^  The  proclamation  of  annexation  was  issued  July  i,  1900.  On  May  21 
and  22,  1900,  the  South  African  delegates  were  received  by  the  Department 
of  State  and  President  McKinley,  and  they  were  received  by  President 
Roosevelt  on  March  14,  1902.  The  war  ended  with  the  treaty  of  Vereeniging, 
May  31,   1902.     Moore,  Digest,  i :  213. 

20  See  Earl  Russell,  British  Foreign  Secretary,  to  Mr.  Adams,  U.  S. 
Minister,  Nov.  26,  Moore,  Digest,  i :  209. 


36       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

ances  whether  communicated  by  diplomatic  note,  public  proclama- 
tion or  public  communication  to  Congress.  Presidents  have  always 
maintained  that  communications  of  the  latter  character  are  not 
subject  to  the  cognizance  of  foreign  states,  but  in  fact  they  have 
often  been  noticed,  as  when  France  protested  against  the  threatening 
language  of  President  Jackson's  message  of  December,  1834, 
suggesting  reprisals^*'  and  Austria  protested  against  President 
Taylor's  comments  on  Kossuth's  revolution  of  1848.^^  In  the 
former  case  President  Jackson  seems  to  have  admitted  the  French 
demand  for  retraction  by  explanations  in  a  later  message.^^  In 
the  last  year  of  the  World  War  Executive  messages  to  the  legisla- 
ture became  the  regular  medium  of  communication  between  Ger- 
many and  the  United  States. ^^ 

20.  President  Presumed  to  Speak  for  the  Nation. 

Finally,  from  the  President's  representative  character,  foreign 
nations  are  entitled  to  presume  that  his  voice  is  the  voice  of  the 
nation.  Secretary  of  State  Jefferson  told  French  minister  Genet 
that  whatever  the  President  communicated  as  such,  foreign  nations 
had  a  right  and  were  bound  to  consider  ''  as  the  expression  of  the 
nation's  will "  and  that  no  foreign  agent  could  be  "  allowed  to 
question  it."  ^*  As  we  shall  see,  this  presumption  becomes  absolute 
with  reference  to  the  fact  of  action  taken  by  national  organs  in 
the  United  States  and  practically  so  with  reference  to  decisions  of 
fact  and  policy  by  the  nation,^^  but  with  reference  to  the  constitu- 


30  Moore,  Digest,  7:   124-125. 

31  "  The  publicity  which  has  been  given  to  that  document  has  placed  the 
Imperial  Government  under  the  necessity  of  entering  a  formal  protest, 
through  its  official  representatives,  against  the  proceedings  of  the  American 
Government,  lest  that  Government  should  construe  our  silence  into  approba- 
tion, or  toleration  even,  of  the  principles  which  appear  to  have  guided  its 
action  and  the  means  it  has  adopted."    Moore,  Digest,  i  :  222. 

32  Message,  Dec.  7,  1835,  Moore,  Digest,  7:   125. 

33  See  speeches  of  President  Wilson,  Premier  Lloyd  George  of  Great 
Britain,  Count  Czcrnin  of  Austria  and  Count  Hertling  of  Germany  before 
their  respective  legislative  bodies  in  1918,  printed  in  Dickinson,  ed.,  Docu- 
ments and  Statements  relating  to  Peace  Proposals  and  War  Aims,  London, 
19T9. 

3*  Moore.  Digest,  4:  680;  Corwin,  ot>.  cit ,  p.  47. 
35  Itifra,  sec.  21. 


NATIONAL  REPRESENTATIVE  ORGAN.  37 

tional  law  governing  the  treaty-making  power,  the  foreign  nation 
may  in  certain  cases  have  to  go  back  of  the  President's  assertions." 
We  thus  find  that,  aside  from  their  cognizance  of  state  and 
national  laws,  foreign  nations  can  officially  communicate  with  the 
United  States  only  through  the  President.  Communication  of  gov- 
ernments with  private  individuals  on  claims  and  with  representatives 
of  de  facto  or  belligerent  governments  are  of  an  unofficial  character- 
Furthermore,  all  official  utterances  of  the  President  are  of  interna- 
tional cognizance  and  are  presumed  to  be  authoritative. 


3c  Infra,  sec.  24  et  se^ 


CHAPTER  IV. 

Conclusiveness  of  the  Acts  and  Utterances  of  National 
Organs  Under  International  Law. 

To  how  great  an  extent  are  foreign  governments  expected  to 
know  American  constitutional  law  defining  the  competence  of 
governmental  organs?  The  answer  varies  according  as  the  issue 
relates  to  (a)  the  making  of  a  national  decision  on  fact  or  policy, 
(b)  the  making  of  a  treaty  or  agreement,  (c)  the  meeting  of  an 
international  responsibility. 

A.  With  Reference  to  the  Making  of  National  Decisions. 

21.  Acts  of  the  President. 

Foreign  nations  need  not  know  and  they  are  not  entitled  to  dis- 
cuss the  constitutional  competence  of  organs  of  the  United  States 
making  national  decisions  on  fact  or  policy.  They  must  accept 
the  assertion  of  the  President  as  final.  Thus  in  a  conversation 
with  Citizen  Genet  in  1793,  Secretary  of  State  Jefferson  refused  to 
discuss  the  question  of  whether  it  belonged  to  the  President  under 
the  constitution  to  admit  or  exclude  foreign  agents.  "  I  inform 
you  of  the  fact,"  he  said,  "  by  authority  of  the  President."  ^  This 
principle  was  also  illustrated  by  the  prompt  acceptance  by  foreign 
nations  of  President  Lincoln's  proclamation  of  blockade  on  April 
19,  1861,  as  a  proclamation  that  war  existed.^  The  power  of  the 
President  to  thus  proclaim  war  without  authority  of  Congress  was 
questioned  in  the  United  States  and  in  the  decision  finally  given 
by  the  Supreme  Court  sustaining  the  President's  act,  three  justices 


1  Moore,  Digest,  4 :  680. 

2  "  It  was,  on  the  contrary,  your  own  government  which,  in  assuming  the 
belligerent  right  of  blockade,  recognized  the  Southern  States  as  Belligerents. 
Had  they  not  been  belligerents  the  armed  ships  of  the  United  States  would 
have  had  no  right  to  stop  a  single  British  ship  upon  the  high  seas."  Earl 
Russell,  British  Foreign  Minister,  note,  May  4,  1865.    Moore,  Digest,  i :  190. 


38 


ACTS  AND  UTTERANCES  OF  NATIONAL  ORGANS.  39 

out  of  seven  vigorously  dissented.'  However,  since  the  fact  of  war 
was  a  matter  subject  to  foreign  cognizance,  foreign  nations  would 
doubtless  have  been  justified  in  issuing  neutrality  proclamations, 
even  had  they  not  been  obliged  to  consider  the  President's  act 
conclusive.* 

Aside  from  declarations  of  war  and  recognitions  of  new  states, 
governments  and  neutrality,^  the  President's  assertions  may  be  con- 
sidered authoritative  by  foreign  nations  when  they  relate  to  the 
termination  of  war,  the  termination  of  a  treaty,  or  the  existence  of 
a  national  sentiment  or  policy.^  Thus  Great  Britain  officially  rec- 
ognized the  President's  proclamation  of  the  termination  of  the  Civil 
War,^  and  Air.  C.  F.  Adams,  the  American  Minister  to  Great  Britain, 
insisted  that  the  British  government  was  incompetent  to  inquire 
into  the  competence  of  the  Secretary  of  State  to  give  notice  of  the 
denunciation  of  the  Great  Lakes  disarmament  treaty  of  1817  or  to 
withdraw  that  notice.® 

"  It  could,"  he  said,  "  only  accept  and  respect  the  withdrawal  as  a  fact." 
The  question  of  competency,  "being  a  matter  of  domestic  administration  af- 
fecting the  internal  relations  of  the  executive  and  legislative  powers,"  in 
no  wise  concerned  Great  Britain.  The  raising  by  her  of  a  question  as  to 
"the  authority  of  the  executive  power"  in  the  matter,  would  have  consti- 
tuted "  an  unprecedented  and  inadmissible  step  in  the  international  relations 
of  government's." 


8  The  Prize  Cases,  2  Black  635;  Moore,  Digest,  i:  190,  7:  172;  Wil- 
loughby.   Constitutional  Law,  2:   1210. 

*  Dana,  note  to  Wheaton,  pp.  37-38;  Willoughby,  op.  cit.,  p.  1212;  Moore, 
Digest,  I :  i8g. 

5  The  recognition  power  is  vested  in  the  President.  See  Moore,  Digest, 
1 :  243-248,  and  "  Memorandum  on  the  method  of  recognition  of  foreign 
governments  and  foreign  states  by  the  government  of  the  United  States, 
1789-1892.  54th  Cong.,  2  Sess.,  Sen.  Docs.  40,  56;  The  Divina  Pastora, 
4  Wheat,  52;   Corwin,  op.  cit.,  p.  71.     See  also  infra,  sec.   192. 

^  Lord  Salisbury  considered  the  interpretation  of  the  Monroe  Doctrine 
given  by  President  Cleveland  and  Secretary  of  State  Olney  as  subject  to 
international  cognizance  as  an  official  expression  of  American  opinion.  See 
Moore,  Digest,  6:  560.     See  also  supra,  sec.  20. 

^U.  S.  Dip.  Correspondence,  1865.  i:  409;  Moore,  Digest,  i:  187. 

*  Report  of  Mr  Foster,  Sec.  of  State,  to  the  President,  Dec.  7,  1892,  H. 
Doc.  471,  56th  Cong.,   1st  Sess.,  pp.  4,  36;  Moore,  Digest,  5:  169-170. 


40       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

22.  National  and  State  Statutes. 

Thus  statements  of  a  decision  on  fact  or  policy,  authorized  by 
the  President,  must  be  accepted  by  foreign  nations  as  the  will  of  the 
United  States.  We  have  noticed  that  acts  prima  facie  law  are 
subject  to  international  cognizance  whether  issuing  from  state  or 
national  organs.^  They  may  not  be  accepted  as  definitive  however, 
if  their  validity  is  denied  by  the  President.  Thus  state  constitu- 
tional or  legislative  provisions  are  not  really  law  if  in  conflict  with 
the  national  constitution,  laws,  or  treaties;  and  acts  of  congress 
or  treaty  provisions  are  not  law  if  in  conflict  with  the  Constitution. 
If  the  President  discovers  such  a  conflict  and  denies  the  validity 
of  the  purported  law  his  interpretation  is  conclusive  for  foreign 
nations,  even  though  it  differs  from  the  view  of  the  court.^° 

23.  Acts  of  Subordinates  to  the  President. 

An  act  by  a  subordinate,  purporting  to  be  under  authority  of  the 
President,  may  not  be  accepted  by  foreign  nations  as  the  will  of 
the  United  States  if  promptly  repudiated.  Thus  the  salute  to  the 
insurgent  Brazilian  navy  in  the  harbor  of  Rio  Janeiro,  authorized 
by  Commodore  Stanton  in  1893,  could  not  be  considered  a  recog- 
nition of  that  party  as  the  government  of  Brazil  in  view  of  the 
President's  prompt  repudiation  of  this  act.^^ 

With  reference  to  the  making  of  national  decisions,  foreign  na- 
tions may  accept  the  voice  of  the  President  as  authoritative.  Pur- 
ported national  or  state  laws  and  the  acts  or  utterances  of  sub- 
ordinates to  the  President,  presumably  subject  to  his  instructions, 
are  the  only  other  pronouncements  on  this  subject  which  may  be 
considered  authoritative,  and  they  cannot,  if  their  validity  is 
promptly  denied  by  the  President.  On  this  subject  foreign  na- 
tions are  not  expected  to  know  the  constitutional  provisions  defin- 
ing the  competence  of  national  organs. 


^  Supra,  sec.  15. 

10  See  discussion  of  the  Dillon  Case,  Moore,  5:  80,  167,  and  infra,  sec.  46, 

^1  Moore,  Digest,  i :  24. 


ACTS  AND  UTTERANCES  OF  NATIONAL  ORGANS.  41 

B.  With  Reference  to  the  Making  of  International  Agreements. 

24.  Foreign  Nations  Presumed  to  know  the  Constitution. 

In  making  international  agreements,  however,  foreign  nations 
must  look  back  of  the  President's  assertions  to  the  constitution  it- 
self.^^  They  are  presumed  to  know,  and  if  they  do  not,  are  entitled 
to  demand  proof  of  the  constitutional  competence  of  all  organs  or 
agents  assuming  to  make  agreements  for  the  United  States,  before 
exchanging  ratifications.  "  Qui  cum  alio  contrahit,  vel  est  vel  debet 
esse  non  ignarus  condicienis  eius,"  said  Ulpian.^^  Furthermore,  the 
authority  of  agents  of  the  state  is  usually  strictly  construed. 
"  Those  dealing  with  them  are  ordinarily  bound  by  their  actual 
authority  and  not  as  in  private  law  by  their  ostensible  authority."  ^* 
This,  however,  is  subject  to  certain  exceptions.  The  international 
court  of  arbitration  in  the  Metzger  case  held  that  "  limitations  upon 
official  authority,  undisclosed  at  the  time  to  the  other  govern- 
ment," do  not "  prevent  the  enforcement  of  a  diplomatic  agree- 
ment." 1= 

25.  Signature  under  Authority  of  the  Treaty  Pozver. 

The  first  step^^  in  the  making  of  international  agreements,  if  of  a 


12 "  The  Constitution  of  the  United  States,  like  the  Constitution  of 
Brazil,  points  out  the  way  in  which  treaties  may  be  made  and  the  faith  of 
the  nation  duly  pledged.  ...  Of  such  provisions  in  each  other's  constitutions 
governments  are  assumed  to  take  notice."  Mr.  Gresham,  Secretary  of  State, 
to  Mr.  Mendonga,  Brazihan  Minister,  October  26,  1894,  Moore,  Digest, 
S:  361. 

13  Digest  of  Justinian,  Lib.  L,  Tit.  xvii,  cited  by  Crandall,  Treaties, 
Their  Making  and  Enforcement,  p.  2,  who  adds :  "  To  know  the  power  of 
him  with  whom  negotiations  are  conducted  requires  a  knowledge  not  only 
of  his  special  mandate  and  powers,  the  exhibition  of  which  may  always  be 
demanded  before  the  opening  of  negotiations,  but  also  of  the  fundamental 
law  or  constitution  of  the  state  which  he  professes  to  represent,  and  of 
any  limitations  which  may  result  from  an  incomplete  sovereignty."  Gefifcken, 
in  a  note  to  Hefffer,  Das  Europaische  Volkerrecht  der  gegenwart,  p.  2or, 
says :  "  Without  doubt  a  government  should  know  the  various  phases  that 
the  project  must  follow  at  the  hands  of  the  other  contractant;  it  is  not 
able  to  raise  reclamations  if  the  treaty  fails  in  one  of  these  phases." 

1*  Borchard,  Diplomatic  Protection  of  Citizens  Abroad,  p.  184. 

15  Metzger  (U.  S.)  v.  Haiti,  Oct.  18,  1899,  U.  S.  For.  Rel.,  p.  262,  cited 
:Borchard,  loc.  cit.  See  also  Trumbull  (Chile)  v.  U.  S.,  Aug.  7,  1892,  Moore, 
International  Arbitrations,  p.  3569- 


42       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

formal  and  permanent  character,  is  exchange  of  "  full  powers  "  by 
the  negotiators.  Although  these,  if  satisfactory,  originally  signified 
an  actual  full  power  of  the  negotiators  to  bind  the  state  within  the 
limits  of  their  instructions,  at  present  they  are  understood  to  mean 
that  the  negotiator  is  vested  merely  with  the  powers  of  the  organ 
under  whose  authority  he  acts,  usually  in  practice  the  representa- 
tive organ. ^^  Suppose  the  organ  giving  "  full  powers  "  to  the 
negotiator  is  the  full  treaty-making  power  of  the  state.  It  was 
held  by  early  publicists  that  in  such  cases  the  document  when 
signed  bound  the  state  and  ratification  became  a  mere  form  which 
could  not  be  refused  except  for  the  most  cogent  reasons. ^^  Though 
recent  opinion  is  less  definite,  yet  it  holds  that  a  strong  obligation  to 
ratify  exists^^  and  this  has  been  the  view  of  the  United  States.  Thus 
in  1804  and  in  181 9  the  Secretary  of  State  insisted  that  the  Spanish 
crown  was  under  an  absolute  obligation  to  ratify  the  treaties  which 
had  been  made  within  the  instructions   of  the  negotiators  acting 


1*  The  conclusion  of  a  treaty  involves  three  steps:  (i)  exchange  of 
full  powers,  negotiation  and  signature,  (2)  consent  to  ratification  with  or 
without  reservations  and  ratification,  (3)  exchange  of  ratifications.  Often 
legislation  must  be  passed  before  the  treaty  becomes  executable  and  "  putting 
into  effect "  may  be  considered  a  fourth  step  in  the  conclusion  of  a  treaty. 
In  the  United  States  legislation  is  not  needed  for  self-executing  treaties 
which  are  executable  after  proclamation  by  the  President.  However,  under 
international  law,  the  treaty  is  complete  and  binding  after  exchange  of  rati- 
fications and  the  parties  are  responsible  for  a  failure  to  take  measures  neces- 
sary to  put  them  into  effect.  See  Wright,  Am.  Jl.  of  Int.  Laiv,  10:  710  (Oct., 
1916),  Crandall,  op.  cit.,  p.  345;  Anson,  The  Law  and  Custom  of  the  Con- 
stitution, 3d  ed.,  Oxford,  1907,  vol.  2,  pt.  i,  p.  54. 

^^  Wheaton,  International  Law  (Dana,  ed.),  pp.  337,  338;  Crandall,  op. 
cit.,  p.  2;  Moore,  Digest,  5:  184,  362;  Satow,  Diplomatic  Practice,  London, 
1917,  2:  273;  Harley,  Am.  Jl.  Int.  Law,  13:  389  (July,  1919),  Wright,  Minn. 
Law  Rev.,  4:   18. 

^8  Grotius,  De  Jure  Belli  ac  Pads,  c.  11,  sec.  12;  Vattel,  Le  Droit  des 
Gens,  2,  c.  12,  sec.  156;  Martens,  Precis  des  Droit  de  Gens,  c.  i,  sec.  36. 

1^  After  citing  five  authorities  supporting  an  absolute  obligation  to 
ratify,  thirteen  for  a  moral  obligation,  eight  for  no  obligation  at  all,  and 
the  circumstances  of  ten  causes  celcbres  in  which  ratification  was  refused, 
Harley,  loc.  cit.,  concludes,  "  It  would  seem  that  the  weight  of  opinion  holds 
that  a  moral  obligation  to  ratify  exists."  See  also  Moore,  Digest,  5:  187; 
Scott,  The  Reports  of  the  Hague  Conferences  of  1899  and  1907,  London, 
1917,  introduction,  p.  xxvii ;  Hall,  International  Law   (Higgins,  ed.),  p.  341. 


ACTS  AND  UTTERANCES  OF  NATIONAL  ORGANS.  43 

under  full  powers  of  the  Crown. ^°  The  United  States  has  also 
admitted  the  same  principle  with  reference  to  its  own  ratification 
when  instructions  have  been  given  by  the  full  treaty  power.  Thus  in 
1790  two-thirds  of  the  Senate  joined  with  the  President  in  instruct- 
ing the  negotiation  of  a  treaty  with  the  Cherokees.  When  the  treaty 
was  submitted  for  ratification,  the  Senate  committee  found  that  it  con- 
formed to  these  instructions  and  consequently  ratification  became 
obligatory.-^  The  same  was  true  of  the  consular  convention  with 
France  signed  in  1788  according  to  instructions  of  Congress  which 
had  power  to  make  treaties  under  the  Articles  of  Confederatioa. 
The  treaty  was  submitted  to  the  Senate  for  ratification  after  or- 
ganization of  the  new  government  under  the  Constitution.  On  his 
advice  being  asked,  John  Jay,  who  continued  in  charge  of  foreign 
affairs,  replied  that  "  while  he  apprehended  that  the  new  conven- 
tion would  prove  more  inconvenient  than  beneficial  to  the  United 
States,  the  circumstances  under  which  it  had  been  negotiated  made, 


20  A  claims  convention  signed  with  Spain  in  1802  was  rejected  by  the 
Senate  but  on  new  evidence  being  presented,  the  Senate  changed  its  mind. 
Now,  however,  Spain  refused  to  ratify.  "  Were  it'  necessary,"  replied  Sec- 
retary Madison,  "to  enforce  these  observations  by  an  inquiry  into  the 
right  of  His  Catholic  Majesty  to  withhold  his  ratification  in  this  case,  it 
would  not  be  difficult  to  show  that  it  is  neither  supported  by  the  principles  of 
public  law,  nor  countenanced  by  the  examples  which  have  been  cited."  Mad- 
ison to  Yrujo.  Oct.  15,  1804,  Am.  St.  Pap.,  For.  Rel.,  2:  625.  The  con- 
vention was  finally  ratified  by  Spain  in  1818  Almost  immediately  a  similar 
controversy  arose  over  the  Florida  cession  treaty.  Secretary  Adams  said, 
"  The  President  considers  the  treaty  of  22d  February  last  as  obligatory  upon 
the  honor  and  good  faith  of  Spain,  not  as  a  perfect  treaty,  ratification  being 
an  essential  formality  to  that,  but  as  a  compact  which  Spain  was  bound  to 
ratify."  He  then  drew  an  analogy  between  an  unratified  treaty  and  a  covenant 
to  convey  land,  asserting  that  "the  United  States  have  a  perfect  right  to  do 
what  a  court  of  chancery  would  do  in  a  transaction  of  similar  character 
between  individuals,  namely,  to  compel  the  performance  of  the  engagement 
as  far  as  compulsion  can  accomplish  it,  and  to  indemnify  themselves  for  all 
the  damages  and  charges  incident  to  the  necessity  of  using  compulsion."  It 
should  be  noted  that  in  the  full  powers  of  his  plenipotentiary,  the  Spanish 
monarch  had  expressly  promised  to  ratify  "  whatsoever  may  be  stipulated  and 
signed  by  you."  5  Moore,  Digest,  189-190.  In  both  of  these  cases  the  United 
States  distinguished  its  own  position,  in  which  the  recognized  constitutional 
rights  of  the  Senate  precluded  an  obligation  to  ratify. 

21  Crandall,  op.  cit.,  p.  79.  The  question  might  be  raised  whether  such  a 
delegation  is  not  an  unconstitutional  delegation  of  legislative  power.  See 
infra,  sec.  60. 


44       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

in  his  opinion,  its  ratification  by  the  Senate  indispensable."     The 
Senate  immediately  proceeded  to  ratify.^^ 

26.  Signature  under  Authority  of  the  President. 

In  case  the  agreement  is  of  a  character  which  the  President  has 
authority  to  make  on  his  own  responsibility,  such  as  protocols, 
truces  and  armistices,  he  is  bound  by  the  act  of  his  agents  acting 
within  their  instructions.  In  such  cases  where  the  agent  acts 
beyond  his  instructions,  as  did  General  Sherman  in  concluding  an 
armistice  with  General  Johnston  in  1865,  the  President  may  repudiate 
the  agreement  as  did  President  Lincoln  on  this  occasion.^^ 

In  the  case  of  treaties,  full  powers  and  instructions  are  generally 
from  the  President  alone,  although  ratification  requires  the  consent 
of  the  Senate.  Consequently  the  latter  retains  full  discretion  to 
refuse  ratification  of  the  signed  instrument.^*  The  Senate  has 
often  rejected  treaties  and  the  practice  was  thus  justified  by 
Secretary  of  State  Clay :  ^^ 

"  The  government  of  his  Britannic  Majesty  is  well  acquainted  with  the 
provision  of  the  Constitution  of  the  United  States,  by  which  the  Senate 
is  a  component  part  of  the  treaty  making  power,  and  that  the  consent  and 
advice  of  that  branch  of  Congress  are  indispensable  in  the  formation  of 
treaties.  According  to  the  practice  of  this  government  the  Senate  is  not 
ordinarily  consulted  in  the  initiatory  state  of  a  negotiation,  but  its  consent 
and  advice  are  only  invoked  after  a  treaty  is  concluded  under  the  direction 
of  the  President  and  submitted  to  its  consideration." 

Foreign  nations  have  acquiesced  in  the  practice  though  occasion- 
ally exception  has  been  taken  to  the  practice  of  amendment  or 
reservation  by  the  Senate  on  the  ground  that  such  amendments 
present  a  virtual  ultimatum  to  the  foreign  government  to  accept 
or   reject,   leaving  no   opportunity   for   negotiation.^* 


22  Crandall,  loc.  cit.;  Ilayden,  The  Senate  and  Treaties,  1789-1817,  N.  Y., 
1920,  p.  7. 

23IIallcck,  International  Law,  4th  ed.    (Baker),  2:  356,  infra,  sec.   167. 

2*  Supra,  note  17. 

2S  Moore,  Digest,  5 :  200.  See  also  Foster,  Practice  of  Diplomacy,  N. 
Y.,  1906,  p.  276. 

20  Willoughby,  Constitutional  Law,  p.  465.  See  also  Crandall,  op.  cit., 
p.  82,  Moore,  Digest,  5 :  201 ;  Satow,  op.  cit.,  2 :  274.  See  the  vigorous 
denunciation  of  the  Senate  amendment  to  the  proposed  King-Hawkesbury 
treaty  of  1803  by  Great  Britain,  Am.  St.  Pap.,  For.  Rel.,  3:  92-94;  Hayden, 
op.  cit.,  p.  150. 


ACTS  AND  UTTERANCES  OF  NATIONAL  ORGANS.  46 

"His  Majesty's  Government,"  wrote  Lord  Lansdowne,  refusing  to  accept 
the  first  Hay-Pauncefote  treaty  as  amended  by  the  Senate,  "find  them- 
selves confronted  with  a  proposal  communicated  to  them  by  the  United 
States  Government,  without'  any  previous  attempt  to  ascertain  their  views, 
for  the  abrogation  of  the  Clayton-Bulwer  treaty." 

Objection   is   here  taken   to   a   breach   of    diplomatic   etiquette  in 

method  but  the  full  power  of  the  United  States  under  international 

lav^  to  refuse  ratification  or  to  consent  only  if  certain  alterations 

are  made,  is  not  denied. 

27.  Reservations  Expressly  Consented  to. 

Though  the  United  States  can  not  be  reproached  with  violation 
of  international  law  if  it  refuses  to  ratify  or  qualifies  its  ratification 
of  a  treaty  signed  by  authority  of  the  President  alone,  yet  a  qualified 
ratification  is  of  no  effect  unless  consented  to  by  both  signatories. 
How  may  this  consent  be  evidenced?  Express  consent  to  reserva- 
tions by  statement  in  the  act  of  ratification  or  by  exchange  of  notes 
would  of  course  by  sufficient,"  as  would  acceptance  without  objec- 


27  The  Senate  advised  ratification  of  the  treaty  with  France  of  Feb,  3, 
1801,  provided  a  new  article  be  substituted  for  article  IL  Bonaparte  ratified 
with  this  modification  but  added  a  new  proviso.  Ratifications  were  ex- 
changed at  Paris,  but  before  proclamation  President  Jefferson  resubmitted 
the  treaty  to  the  Senate  which  accepted  Bonaparte's  proviso.  Malloy, 
Treaties,  etc.,  p.  505.  Hayden,  op.  cit.,  p.  124.  After  consenting  to  rati- 
fication of  the  General  Act  for  the  suppression  of  the  African  Slave  Trade 
(1890),  the  Senate  "Resolved  further.  That  the  Senate  advise  and  consent 
to  the  acceptance  of  the  partial  ratification  of  the  said  General  Act  on  the 
part  of  the  French  Republic,  and  to  the  stipulations  relative  thereto,  as  set 
forth  in  the  protocol  signed  at  Brussels,  January  2,  1892."  It  then  made  a 
reservation  on  its  own  behalf.  The  protocol  of  deposit  of  ratifications  of 
Feb.  2,  1892,  provided  for  in  Article  99  of  the  treaty,  recites  the  Senate's 
resolution  and  states:  "This  resolution  of  the  Senate  of  the  United  States 
having  been  preparatlvely  and  textually  conveyed  by  the  Government  of 
His  ATajesty  the  King  of  the  Belgians  to  the  knowledge  of  all  the  signatory 
powers  of  the  General  Act,  the  latter  have  given  their  assent  to  its  insertion 
in  the  present  Protocol  which  will  remain  annexed  to  the  Protocol  of 
January  2d,  1892."  Malloy,  Treaties,  etc.,  p.  1992.  In  the  treaty  of  191 1, 
Japan  gave  express  assent  to  an  "understanding"  and  tacit  assent  to  an 
"amendment."  The  proclamation  of  President  Taft  reads:  "And  whereas, 
the  advice  and  consent  of  the  Senate  of  the  United  States  to  the  ratification 
of  the  said  Treaty  was  given  with  the  understanding  '  that  the  treaty  shal\ 
not  be  deemed  to  repeal  or  affect  any  of  the  provisions  of  the  Act  of 
Congress  entitled  "  An  Act  to  regulate  the  Immigration  of  Aliens  into  the 
United  States,"  approved  February  20th,  1907;' 


46       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

tion  of  an  official  note  stating  such  reservations.-^  The  terms 
of  such  a  note  must  be  consented  to  by  all  the  organs  constituting 
the  treaty  power  of  each  state.  Thus,  as  is  the  case  with  the 
treaty  itself,  unless  the  President  and  Senate  have  each  consented 
to  amendments,  reservations  or  interpretations,  the  United  States 
is  not  bound.  Attempts  of  either  to  act  separately  have  been 
unavailing.  The  Supreme  Court  said  in  reference  to  a  joint 
resolution  passed  by  a  majority  of  the  Senate,  stating  the  purpose 
of  the  Senate  in  ratifying  the  treaty  annexing  the  Philippines:^* 

"  We  need   not   consider   the    force    and    effect   of   a   resolution   of   this 
sort.  .  .  .  The  meaning  of  the   treaty   can   not  be   controlled  by   subsequent 


"  And  whereas,  the  said  Treaty,  as  amended  by  the  Senate  of  the 
United  States,  has  been  duly  ratified  on  both  parts,  and  the  ratifications  of 
the  two  Governments  were  exchanged  in  the  City  of  Tokyo,  on  the  fourth  day 
of  April,  one  thousand  nine  hundred  and  eleven ; 

"  Now,  therefore,  be  it  known  that  I,  William  Howard  Taft,  President 
of  the  United  States  of  America,  have  caused  the  said  Treaty,  as  amended 
and  the  said  understanding  to  be  made  public,  to  the  end  that  the  same  and 
every  article  and  clause  thereof  may  be  observed  and  fulfilled  with  good 
faith  by  the  United  States  and  the  citizens  thereof  In  testimony  whereof, 
etc."  Charles,  Treaties,  etc.,  p.  82.  An  interpretation  proposed  by  the 
Senate  to  the  treaty  of  1868  with  the  North  German  Confederation  was  duly 
communicated  to  that  government  and  accepted  as  the  true  interpretation  of 
the  article.  It  was,  however,  omitted  in  the  exchange  copy  given  by  that 
government.  This  omission  being  noticed  later,  a  special  protocol  was 
signed  in  1871,  recognizing  the  interpretation.     Crandall,  op.   cit.,  p.  88. 

28  In  negotiating  the  treaty  of  1850  with  Switzerland,  the  American 
negotiator  agreed  that  the  unqualified  most-favored-nation  clause  of  article 
10  should  be  interpreted  absolutely.  In  1898,  Switzerland  claimed  under 
this  clause,  the  benefits  offered  to  France  under  a  reciprocity  agreement  of 
May  30,  1898  At  first  the  United  States  objected  that  to  admit  the  claim 
would  be  contrary  to  her  accepted  interpretation  of  identical  most-favored- 
nation  clauses,  but  "  It  was  found  upon  an  examination  of  the  original  cor- 
respondence that  the  President  of  the  United  States  was  advised  of  the 
same  understanding  and  that  the  dispatch  in  which  it  was  expressed  was 
communicated  to  the  Senate  when  the  treaty  was  submitted  for  its  approval," 
consequently  customs  officials  were  directed  to  admit  Swiss  importations  at 
the  reduced  rate.     Moore,  Digest,  5 :  284. 

29  Fourteen  Diamond  Rings  v.  United  States  (1901),  183  U.  S.  176. 
"  The  power  to  make  treaties  is  vested  by  the  Constitution  in  the  President 
and  Senate,  and  while  this  proviso  was  adopted  by  the  Senate,  there  is  no 
evidence  that  it  ever  received  the  sanction  or  approval  of  the  President" 
N.  Y.  Indians  v.  U.  S.  (1898),  170  U.  S.  i.  See  also  Moore,  Digest,  5:  210; 
Crandall,  op.  cit.,  p.  88. 


ACTS  AND  UTTERANCES  OF  NATIONAL  ORGANS.  47 

explanations  of  some  of  those  who  may  have  voted  to  ratify  it."     Justice 
Brown,  concurring,  said : 

"  It  can  not  be  regarded  as  part  of  the  treaty,  since  it  received  neither 
the  approval  of  the  President  nor  the  consent  of  the  other  contracting  power. 
.  .  .  The  Senate  has  no  right  to  ratify  the  treaty  and  introduce  new  terms 
into  it,  which  shall  be  obligatory  upon  the  other  power,  although  it  may 
refuse  its  ratificatiton,  or  make  such  ratification  conditional  upon  the  adop- 
tion of  amendments  to  the  treaty." 

A  similar  fate  has  met  interpretations  or  reservations  made  by 
the  President  without  consent  of  the  Senate,  even  when  accepted 
by  the  other  signatory.  Thus  explanatory  notes  signed  by  the 
plenipotentiaries  on  exchange  of  ratifications  to  the  Mexican  peace 
treaty  of  1848  and  the  Clayton-Bulwer  treaty  with  Great  Britain 
of  1850  were  considered  of  doubtful  validity,^"  and  on  other 
occasions  the  President  has  submitted  such  explanatory  documents 
to  the  Senate  before  proclaiming  the  treaty. ^^ 

Thus,  if  in  fact  the  note  has  not  received  consent  of  the  full 
treaty-making  power,  the  United  States  is  not  bound  unless  the 
foreign  nation  can  show  that  it  had  reason  to  suppose  the  note  had 
been  constitutionally  accepted.     There  would  certainly  be  such  a 


30  Moore,  Digest,  5:  205-206;  Crandall,  op.  cit.,  pp.  85,  381.  Bigelow, 
Breaches  of  Anglo- American  Treaties,  pp.  1 16-149,  discusses  at  length  the 
effectiveness  of  these  and  other  documents  alleged  to  be  explanatory  of  the 
Clayton-Bulwer  treaty.  Secretary  Root  agreed  by  exchange  of  notes  with 
Mr.  Bryce,  British  Ambassador,  as  to  the  meaning  of  Art  II  of  the  arbi- 
tration convention  of  1908.  These  documents  were  submitted  to  the  Senate 
for  its  information  but  apparently  not  for  its  approval.  Crandall,  op.  cit., 
p.  89;  D.  H.  Miller,  Reservations  to  Treaties,  1919,  p.  89. 

31  JefTerson  thought  it  necessary  to  submit  an  interpretation  offered  by 
Napoleon  of  the  treaty  of  1801  to  the  Senate  before  exchange  of  ratifica- 
tions. Charles  Francis  Adams  said  that  the  British  interpretation  of  the 
Declaration  of  Paris,  to  which  the  United  States  desired  to  accede,  would 
have  to  be  submitted  to  the  Senate.  Secretary  Fish  declared  the  exchange 
of  ratifications  of  a  treaty  with  Turkey  in  1874  was  invalid  because  accom- 
panied by  an  explanation  of  the  American  plenipotentiary  which  rendered 
a  Senate  amendment  nugatory.  Secretary  Bayard  refused  to  give  an  ex- 
planation of  a  Senate  amendment  to  the  treaty  with  Hawaii  of  1884  and  to 
authorize  a  protocol  explaining  the  submarine  cable  convention  of  1886 
without  Senate  approval.  Crandall,  op.  cit.,  pp.  86-89;  Moore,  Digest,  5: 
207.  Although  protocols  prolonging  the  time  for  exchange  of  ratifications 
have  not  always  been  submitted  to  the  Senate,  this  has  usually  been  done. 
Crandall,  op.  cit.,  pp.  89-92. 


48       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

presumption  where  the  exchange  of  notes  took  place  before  the 
Senate  had  acted.  Thus  intrepretive  agreements  relating  to  the 
treaties  with  Mexico  (1848)  and  Great  Britain  (1850)  not  having 
been  exchanged  until  after  ratification,  though  considered  valid 
by  foreign  nations,^^  were  questioned  by  the  United  States.^'  On 
the  other  hand,  the  interpretive  notes  exchanged  before  the  Senate 
had  acted  on  the  Swiss  treaty  of  1855  were  considered  valid.  In 
this  case  the  notes  in  question  had  been  submitted  to  the  Senate 
but  had  not  been  formally  acted  on  by  that  body.^* 

28.  Reservations  Tacitly  Consented  to. 

Tacit  consent  to  reservatons  is  also  possible,  but  it  seems  doubt- 
ful whether  the  United  States  would  be  bound  by  a  reservation 
submitted  by  a  foreign  power  unless  the  Senate  has  had  an  oppor- 
tunity to  object.  The  signature  and  exchange  of  ratifications  of 
treaties  are  formal  ceremonies  offering  suitable  opportunities  for  the 
proposal  of  reservations.  It  would  appear  that  if  such  proposals 
are  stated  as  conditions  of  consent  by  the  proposing  power,  on 
either  of  these  occasions,  lack  of  protest  within  a  reasonable  time 
by  others  could  be  construed  as  tacit  consent.  At  the  Hague  Con- 
ferences, the  numerous  reservations  offered  upon  signature  of  the 
Conventions  and  maintained  by  the  power  upon  ratification  were 
accorded   tacit  consent  in  this   manner.^^     Other  signatories   are, 


32  Mexico  and  Great  Britain  respectively  asserted  the  validity  of  these 
agreements.  Moore,  5 :  205 ;  Lord  Clarendon  to  Mr.  Buchanan,  May  2,  1854, 
Br.  and  For.  St.  Pap,  46:  267,  Moore,  3:  138.  The  Mexican  agreement  is 
printed  after  the  Treaty  in  Malloy,  Treaties,  etc.,  p.  11 19. 

33  Supra,  note  30. 
3*  Supra,  note  28. 

35  The  Marie  Glaeser,  L.  R.  (1914),  P.  218;  The  Appam  (1916),  243  U.  S. 
124,  iufra,  note  38.  In  most  cases  reservations  were  offered  at  signature 
and  affirmed  at  ratification  though  sometimes  they  were  offered  for  the  first 
time  at  ratification.  Thus  the  Senate  resolution  advising  ratification  of  the 
1907  Hague  Convention  for  the  Pacific  Settlement  of  International  Dis- 
putes affirmed  the  declaration  made  by  the  American  plenipotentiaries  on 
signature  and  added  a  new  reservation.  Malloy,  Treaties,  etc.,  p.  2247.  See 
discussion,  Scott.  Reports  of  the  Hague  Conference,  xxviii,  and  D.  H.  Miller, 
Reservations  to  Treaties  (p.  145),  who  considers  silent  acquiescence  at  ex- 
change of  ratifications,  "express  acceptance."  Ibid.,  pp.  141,  145,  160.  For 
reservations  with  statement  of  the  method  of  presentment  see  Carnegie  En- 
dowment edition  of  the  Hague  Conventions. 


ACTS  AND  UTTERANCES  OF  NATIONAL  ORGANS.  49 

however,  at  liberty  to  object  to  reservations.  Thus  the  powers 
objected  to  a  reservation  to  the  treaty  of  Versailles  proposed  by 
China  upon  signature  and,  as  a  result,  China  refused  to  sign  the 
treaty.^*'  Sometimes  the  treaty  itself  has  stated  that  it  is  not  sub- 
ject to  reservation.  Thus  article  65  of  the  Declaration  of  London 
provided  "  The  provisions  of  the  present  Declaration  form  an 
indivisible  whole."  ^^ 

The  United  States  Senate  is  presumed  to  be  aware  of  reserva- 
tions made  by  foreign  powers  on  signature,  before  it  consents  to 
ratification,  consequently  the  United  States  is  bound  by  such  reserva- 
tions. Thus,  said  the  Supreme  Court  of  a  reservation  attached  by 
the  King  of  Spain  to  his  ratification  of  the  Florida  cession  treaty 
of  i8i9:^« 

"  It  is  too  plain  for  argument  that  where  one  of  the  parties  to  a  treaty 
at  the  time  of  its  ratification  annexes  a  written  declaration  explaining  am- 
biguous language  in  the  instrument  or  adding  a  new  and  distinct  stipulation 

^^  Am.  Year  Book,  1919,  p.  93. 

37  Upon  this,  the  drafting  committee,  of  which  M.  Renault  was  chair- 
man, commented  as  follows :  "  This  Article  is  of  great  importance,  and  is  in 
conformity  with  that  which  was  adopted  in  the  Declaration  at  Paris.  The 
rules  contained  in  the  present  Declaration  relate  to  matters  of  great  im- 
portance and  great  diversity.  They  have  not  all  been  accepted  with  the 
same  degree  of  eagerness  by  all  the  Delegations;  some  concessions  have 
been  made  on  one  point  in  consideration  of  concessions  obtained  on  another. 
The  whole,  all  things  considered,  has  been  recognized  as  satisfactory.  A 
legitimate  expectation  would  be  defeated  if  one  Power  might  make  reserva- 
tions on  a  rule  to  which  another  Power  attached  particular  importance." 
Naval  War  College,  Int.  Law  Topics,  1909,  p.  155.  Protocol  No.  24  of  the 
Paris  Congress  of  1856  provided  with  reference  to  the  Declaration  of  Paris, 
"  On  the  proposition  of  Count  Walewski,  and  recognizing  that  it  is  for  the 
general  interest  to  maintain  the  indivisibility  of  the  four  principles  men- 
tioned in  the  declaration  signed  this  day,  the  plenipotentiaries  agree  that 
the  powers  which  shall  have  signed  it,  or  which  shall  have  acceded  to  it,  can 
not  hereafter  enter  into  any  arrangement  in  regard  to  the  application  of  the 
right  of  neutrals  in  time  of  war,  which  does  not  at  the  same  time  rest  on 
the  four  principles  which  are  the  object  of  the  said  declaration."  This  was 
recognized  as  a  binding  obligation  on  the  powers  and  as  a  result  the  United 
States  being  unwilling  to  accept  one  provision  of  the  Declaration  was  ex- 
cluded from  the  treaty,  a  situation  which  proved  most  disadvantageous  upon 
the  outbreak  of  the  Civil  War  five  years  later.     Ibid.,  1905,  p.  no. 

38  Doe  V.  Braden,  16  How.  635,  656  (1853).  See  also  Crandall,  p.  88,  and 
supra,  note  28. 


50       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

and  the  treaty  is  afterwards  ratified  by  the  other  party  with  the  declaration 
attached  to  it,  and  the  ratifications  duly  exchanged — the  declaration  thus 
annexed  is  a  part  of  the  treaty  and  as  binding  as  if  it  were  inserted  in 
the  body  of  the  instrument.  The  intention  of  the  parties  is  to  be  gathered 
from  the  whole  instrument  as  it  stood  when  the  ratifications  were  ex- 
changed." 

In  case  foreign  reservations  are  proposed  upon  exchange  of 
ratifications,  the  Senate  has  no  opportunity  to  object  unless  the 
reservations  are  especially  submitted  to  it  by  the  President.  Pres- 
ident Jefiferson  thus  submitted  Napoleon's  reservation  to  the  treaty 
of  1801  after  exchange  of  ratifications  and  the  Senate  consented.^® 
Doubtless,  prompt  notification  of  Senatorial  objection,  had  it  been 
given,  would  have  relieved  the  United  States  of  responsibility 
under  the  treaty,  in  spite  of  the  fact  that  ratifications  had  been 
exchanged. 

In  multi-partite  treaties  a  formal  exchange  of  ratifications  is 
often  dispensed  with  and  provision  is  made  for  deposit  of  ratifica- 
tions at  a  central  bureau.  This  was  provided  in  the  African  Slave 
Trade,  Algeciras,  Hague,  Versailles  and  other  Conventions." 
With  such  provisions,  qualified  ratifications  may  be  deposited  in  the 


39  Crandall,  op.  cit.,  p.  86,  and  supra,  note  27. 

■*o  Article  440  of  the  Treaty  of  Versailles  reads : 

"  The  present  Treaty  of  which  the  French  and  English  texts  are  both 
authentic,  shall  be  ratified 

"  The  deposit  of  ratifications  shall  be  made  at  Paris  as  soon  as  possible. 

"  Powers  of  which  the  seat  of  the  Government  is  outside  Europe,  will 
be  entitled  merely  to  inform  the  Government  of  the  French  Republic  through 
their  diplomatic  representative  at  Paris  that  their  ratification  has  been  given ; 
in  that  case  they  must  transmit  the  instrument  of  ratification  as  soon  as 
possible. 

"A  first  proces-verbal  of  the  deposit  of  ratifications  will  be  drawn  up  as 
soon  as  the  Treaty  has  been  ratified  by  Germany  on  the  one  hand,  and  by 
three  of  the  Principal  Allied  and  Associated  Powers  on  the  other  hand. 

"  From  the  date  of  this  first  proces-verbal  the  Treaty  will  come  into 
force  between  the  High  Contracting  Parties  who  have  ratified  it.  For  the 
determination  of  all  periods  of  time  provided  for  in  the  present  Treaty  this 
date  will  be  the  date  of  the  coming  into  force  of  the  Treaty. 

"  In  all  other  respects  the  Treaty  will  enter  into  force  for  each 
Power  at  the  date  of  the  deposit  of  its  ratification. 

"  The  French  Government  will  transmit  to  all  the  signatory  Powers  a 
certified  copy  of  the  proces-verbaux  of  the  deposit  of  ratifications." 


ACTS  AND  UTTERANCES  OF  NATIONAL  ORGANS.  51 

method  provided,  but  if  upon  receipt  of  the  proces-verbal  of  the 
deposit  of  such  quahfied  ratification,  any  signatory  objects  to  the 
reservations,  the  treaty  will  not  be  in  effect  as  between  those 
signatories.  As  to  signatories  offering  no  objection  the  reservations 
will  be  regarded  as  tacitly  accepted,  and  the  treaty  will  be  in  effect 
as  from  the  date  of  deposit  of  ratifications.  Undoubtedly,  when 
foreign  states  make  reservations  the  Senate  ought  to  be  given  an 
opportunity  to  object  to  such  reservations*^  and  that  was  done  in 
the  French  reservation  to  the  African  Slave  Trade  Convention  of 
1890.*^  It  does  not  appear  that  all  reservations  attached  to  deposit 
of   ratifications  of  the  Hague  Convention  were  submitted  to  the 


*''■  "  It  is  believed  that  it  is  immaterial  whether  the  reservation  be  made 
before,  at,  or  after  signing,  as  until  a  Power  has  ratified  and  deposited  rati- 
fications of  the  Convention  it  is  not  bound.  But  good  faith  requires  that 
objections  to  any  article  be  stated  either  before  or  at  the  time  of  signing,  so 
that  nations  may  know  the  nature  and  extent  of  the  obligations  they  are 
assuming  with  other  nations.  International  conventions  are  often  com- 
promises, and  the  price  of  a  compromise  to  a  nation  may  be  the  very  article 
which  another  nation  excludes  from  the  convention  or  interprets  in  a 
special  sense  in  the  act  of  ratification."  Scott,  op.  cit.,  p.  xxviii.  See  also 
supra,  note  37. 

*2The  following  draft  of  a  Protocol  of  Jan.  2,  1892,  is  printed  in 
Malloy,  Treaties,  etc.,  p.  1990,  following  the  African  Slave  Trade  General 
act  of  1890: 

"The  undersigned  .  .  .  met  at  the  Ministry  of  Foreign  Affairs  at 
Brussels,  in  pursuance  of  Article  XCIX  of  the  General  Act  of  July  2,  1890, 
and  in  execution  of  the  Protocol  of  July  2,  1891,  with  a  view  to  preparing 
a  certificate  of  the  deposit  of  the  ratifications  of  such  of  the  signatory 
powers  as  were  unable  to  make  such  deposit  at  the  meeting  of  July  2, 
1891. 

"  His  Excellency  the  Minister  of  France  declared  that  the  President  of 
the  Republic,  in  his  ratification  of  the  Brussels  General  Act  had  provisionally 
reserved,  until  a  subsequent  understanding  should  be  reached,  Articles  XXI, 
XXII,  XXIII,  and  XLII  to  LXI.  The  representatives  ....  acknowledged 
to  the  Minister  of  France  the  deposit  of  the  ratifications  of  the  President  of 
the  French  Republic,  as  well  as  of  the  exception  bearing  upon  Articles  XXI, 
XXII,  XXIII,  and  XLII  to  LXL 

"  It  is  understood  that  the  powers  which  have  ratified  the  General  Act 
in  its  entirety,  acknowledge  that  they  are  reciprocally  bound  as  regards  all 
its  clauses. 

"  It  is  likewise  understood  that  these  powers  shall  not  be  bound  toward 
those  which  shall  have  ratified  it  partially,  save  within  the  limits  of  the 
engagements  assumed  by  the  latter  powers. 


52        THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

Senate  and  question  might  arise  as  to  their  vahdity,  though  undoubt- 
edly, after  a  considerable  lapse  of  time,  the  foreign  nation  would 
be  entitled  to  assume  tacit  acceptance  of  its  reservation.*^ 

29.  Exchange  of  Ratifications  under  Authority  of  the  President. 
Even  after  the  treaty  has  been  ratified**  by  both  parties  and 
interpretations,  reservations  or  amendments  properly  consented  to, 
the  foreign  nation  can  not  hold  the  United  States  bound  until 
ratifications  have  been  exchanged.*^  This  act,  performed  under 
authority  of  the  President,*^  gives  the  treaty  complete  international 
validity,  which,  so  far  as  international  obligations  are  concerned, 
is  then  held  to  date  back  to  the  time  of  signature  unless  expressly 
stated  otherwise  in  the  treaty  itself.*^ 


"  Finally,  it  is  understood  that,  as  regards  the  powers  that  have  par- 
tially ratified,  the  matters  forming  the  subject  of  Articles  XLII  to  LXI, 
shall  continue,  until  a  subsequent  agreement  is  adopted  to  be  governed  by 
the  stipulations  and  arrangements  now  in  force." 

The  United  States  Senate  resolution  of  ratification  expressly  accepted 
the  French  reservation  and  made  another  which  was  consented  to  by  the 
powers  prior  to  deposit  of  ratification.    Supra,  note  27. 

43  It  does  not  appear  that  the  Senate  had  an  opportunity  to  consider  the 
reservation  to  the  Sanitary  Convention  of  1903  made  by  Persia  on  deposit  of 
ratifications.  (Malloy.  p.  2129.)  The  Proces-verbal  of  ratification  contains 
reservations  by  Great  Britain  and  the  United  States  also  but  these  were  pro- 
posed at  signature.  (Miller,  op.  cit.,  pp.  112-117.)  In  its  resolution  of  rati- 
fication the  Senate  failed  to  note  the  reservations  made  at  signature  either 
by  the  American  or  foreign  plenipotentiaries.  President  Roosevelt  hesitated 
to  ratify  the  convention  but  did  so  when  informed  by  the  French  Government 
that  reservations  attached  to  signature  became  part  of  the  treaty  and  so  had 
been  in  reality  accepted  by  the  Senate.     {Ibid.,  pp.  117-119.) 

4*  Ratification  in  the  United  States  is  under  authority  of  the  President 
alone  and  he  may  refuse  to  ratify  treaties  after  the  Senate  has  consented. 
Shepherd  v.  Insurance  Co.,  40  Fed.  341 ;  Taft,  Our  Chief  Magistrate,  and  His 
Powers,  p.  106;  Crandall,  op.  cit.,  pp.  81,  94,  97;  Willoughby,  op.  cit.,  i: 
466 ;  Black,  Constitutional  Law,  p.  124 ;  Foster,  Practice  of  Diplomacy,  p. 
279;  Spooner,  Sen.  from  Wis,  Cong.  Rec,  59th  Cong.,  ist  Sess.,  p.  1419, 
quoted  Corwin,  op.  cit.,  p.  175.  See  also  colloquy  Senators  Reed,  Mo.,  and 
Brandegee,  Conn.,  March  2.  1920,  Cojig.  Rec,  59:  4032. 

*5  Scott,  op.  cit.,  p.  xxvii;  Foster,  op.  cit.,  p.  280;  Crandall,  op.  cit.,  p.  6. 

*8  Crandall,  op.  cit.,  p.  93. 

4T  Haver  v.  Yaker,  9  Wall.  32 ;  Crandall,  op.  cit.,  p.  343 ;  Willoughby,  op. 
cit.,  i:  517;  Hall  (Higgins  ed.),  op.  cit.,  343,  supra,  sec.  15,  note  14;  infra, 
sees.  179,  180. 


ACTS  AND  UTTERANCES  OF  NATIONAL  ORGANS.  53 

It  thus  appears  that  foreign  nations  recognize  their  duty  to 
know  the  organization  of  the  full  treaty  power  under  the  Constitu- 
tion. They  recognize  that  the  United  States  is  not  responsible  for 
any  instrument  beyond  the  instructions  of  the  negotiators  and  is 
not  bound  by  a  treaty,  signed  or  ratified  merely  under  authority  of 
the  President  without  advice  and  consent  of  the  Senate.  They 
have  likewise  recognized  that  reservations  or  amendments,  not 
consented  to  by  the  whole  treaty  power,  do  not  bind  the  United 
States  unless  there  is  reason  to  suppose  that  such  action  had  taken 
place. 

30.  Treaty  Provisions  Ultra  Vires  from  Lack  of  Original  Authority. 

Difficulties,  however,  arise  in  cases  where  the  constitutional  law 
defining  the  competence  of  the  organ  for  making  agreements  is 
obscure.  In  such  cases,  is  the  foreign  nation  justified  in  accepting 
the  President's  interpretation  of  the  Constitution?  We  must  recall 
that  the  President  is  for  them  the  only  official  source  of  information 
about  the  Constitution  of  the  United  States.*^  Following  practice, 
the  answer  seems  to  depend  upon  whether  the  alleged  want  of 
competence  arises  (i)  from  a  lack  of  original  authority  or  (2)  from 
operation  of  obscure  constitutional  limitations. 

Foreign  nations  are  supposed  to  know  what  organs  the  Constitu- 
tion designates  for  concluding  various  types  of  international  agree- 
ments. Thus  they  are  supposed  to  know  that  in  England  power  to 
make  treaties  is  vested  in  the  Crown  in  Council,*^  that  in  France:  " 

"  The  President  of  the  -Republic  shall  negotiate  and  ratify  treaties. 
Treaties  of  peace  and  of  commerce,  treaties  which  involve  the  finances  or 
the  state,  those  relating  to  the  person  and  property  of  French  citizens  in 
foreign  countries,  shall  be  ratified  only  after  having  been  voted  by  the 
two  chambers." 

That  in  the  United  States.  "  The  President  shall  have  power,  by 
and  with  the  advice  and  consent  of  the  Senate,  to  make  treaties, 
provided  two-thirds  of  the  Senators  present  concur."  ^^  Until  these 
organs  have  authorized  ratification,  foreign  nations  can  not  hold 

*8  Supra,  sec.  13. 

•*^  Anson,  op.  cit.,  vol.  2,  pt.  i,  p.  54;  pt.  2,  p.  108. 
^'^  Constitutional  Law  of  July  16,  1875,  art.  8. 
"1  Const.  Arh^TIi  sec.  2. 


54       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

the  nation  bound  even  though  the  authority  conducting  negotiations 
neglected  to  inform  them  or  informed  them  erroneously  as  to  the 
organs  with  constitutional  competence.  However,  all  agreements 
are  not  treaties.  Certain  military  agreements,  such  as  armistices, 
are  usually  within  the  inherent  power  of  the  Commander-in-Chief. 
Others  such  as  protocols  and  agreements  of  temporary  effect  are 
within  the  inherent  power  of  the  representative  organ.^^  The  Pres- 
ident has  often  concluded  such  agreements,  notably  the  preliminaries 
of  peace  to  end  the  Spanish  and  World  Wars.  If  he  permits  the 
other  nation  to  understand  that  such  action  is  within  his  constitutional 
authority,  is  the  United  States  bound,  even  though  the  Senate  sub- 
sequently take  a  contrary  view?  Opinions  have  differed  in  the 
United  States^^  but  foreign  nations  have  actually  held  the  United 
States  bound. '^^  We  believe  that  in  such  cases  the  United  States 
is  bound  only  if  the  President  actually  is  within  the  scope  of  his 
constitutional  powers.  However,  the  extent  of  these  powers  is 
so  obscure  that  the  foreign  nation  is  justified  in  accepting  the 
President's  own  view  of  his  powers  and  holding  the  United  States 


52  Crandall,  op.  cit.,  p.  iii;  Willoughby,  op.  cit.,  i:  200-202,  infra, 
sees.   161-172. 

53  President  Wilson  took  the  position  that  the  agreement  of  Nov.  5, 
1918,  and  earlier  exchanges  of  notes,  upon  the  basis  of  which  the  armistice 
of  November  11,  1918,  was  concluded  with  Germany,  rendered  ratification  of 
a  treaty  in  accordance  with  those  terms  obligatory  upon  the  United  States. 
"I  am  ready,"  he  said  in  a  speech  at  Spokane,  Washington,  Sept.  12,  1919, 
"to  fight  from  now  until  all  the  fight  has  been  taken  out  of  me  by  death 
to  redeem  the  faith  and  promises  of  the  United  States."  (Sen.  Doc.  No. 
120,  66th  Cong.,  1st  Sess.,  p.  173.)  President  Wilson  and  the  German  dele- 
gation agreed  as  to  the  obligation  of  the  preliminary  agreement  but  differed 
as  to  the  concurrence  of  the  treaty  therewith.  See  also  Wright,  Minn.  Latv 
Rcz'.,  4:  35.  The  Senate  appears  to  have  paid  little  attention  to  arguments 
derived  from  the  obligation  of  the  preliminary  agreements,  in  considering 
either  the  Spanish  treaty  of  1898  or  the  German  treaty  of  1919. 

5* Thus  Spain  insisted  that  the  preliminaries  of  peace  of  Aug.  12,  iSgS, 
were  a  binding  obligation  and  protested  against  proposed  terms  of  the  defini- 
tive treaty  on  the  ground  of  conflict  (Benton,  Int.  Law  and  Diplomacy  of 
Spanish-American  War,  Baltimore,  1908,  p.  244)  and  Germany  protested 
against  proposed  terms  of  the  treaty  of  Versailles  on  the  ground  of  conflict 
with  the  preliminary  exchange  of  notes  of  Nov.  5,  1918.  (See  Text  of 
German  note  of  May  29,  1919,  Int.  Conciliation,  1919,  p.  1203,  and  Ofiicial 
Summary,  66th  Cong.,  1st  Sess.,  Senate  Doc.  No.  149,  p.  83.) 


ACTS  AND  UTTERANCES  OF  NATIONAL  ORGANS.  55 

accordingly  unless  that  view  is  very  obviously  erroneous,  i.e., 
unless  the  agreement  in  question  is  obviously  of  sufficient  perma- 
nence and  importance  to  constitute  a  "  treaty." 

31.  Treaty  Provisions  Ultra  Vires  from  Operation  of  Constitutional 
Limitations. 

When  an  alleged  want  of  constitutional  competence  in  the  agree- 
ment-making power  arises  from  the  operation  of  an  obscure  con- 
stitutional limitation,  the  foreign  nation  would  seem  entitled  to 
accept  the  ostensible  competence  of  the  agreement-making  author- 
ity absolutely  and  to  hold  the  nation  accordingly.  Thus  in  England, 
if  the  Crown  in  Council  ratifies  a  treaty  on  its  own  responsibility, 
the  other  party  is  entitled  to  insist  upon  its  validity,  even  though 
the  treaty  is  of  a  character  which,  according  to  the  law  of  the 
Constitution,  should  have  been  submitted  td  parliament  before 
ratification,  if  indeed  there  are  any  such.'^'^  So  the  United  States 
is  bound  by  all  agreements  ratified  by  the  treaty-making  power, 
even  though  it  may  subsequently  appear  that  the  treaty-making 
power  acted  in  disregard  of  limitations  imposed  by  the  guarantees 
of  the  Constitution  in  favor  of  individual,  state  or  other  rights.^® 

Thus  in  negotiation  of  the  Webster-Ashburton  treaty  involving 
a  fixing  of  the  Maine  boundary  and  the  cession  to  Great  Britain  of 
land  claimed  by  that  state,  the  British  government  was  aware  of 
the  doubt  which  existed  as  to  the  competence  of  the  United  States 
treaty-making  power  to  cede  territory  belonging  to  the  state  without 
that  state's  consent.  They,  therefore,  refused  to  negotiate  until 
assured  by  authority  of  the  President  that  the  constitutional  diffi- 
culty had  been  eliminated,  an  assurance  which  was  made  possible 
by   Maine's    consent   to   the   cession."     So   also,    in    1854   France 


55  Supra,  note  49. 

56  "  The  fundamental  laws  of  a  state  may  withhold  from  the  executive 
department'  the  power  of  transferring  what  belongs  to  the  state;  but  if  there 
be  no  express  provision  of  that  kind,  the  inference  is,  that  it  has  confided 
to  the  department  charged  with  the  power  of  making  treaties,  a  discretion 
commensurate  with  all  the  great  interests,  and  wants,  and  necessities  of 
the  nation.     (Kent,  Commentaries,  i:  166.) 

5^ "  The  negotiations  for  a  convention  to  settle  the  boundary  question 
can  hardly  be  said  to  have  made  any  positive  progress,  since  last  year.  .  .  . 
The  interest  of  both  parties,  undoubtedly,  requires  a  compromise,  and  I  have 


56       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

contended  that  the  United  States  continued  bound  by  the  provision 
of  the  treaty  of  1852  granting  consuls  immunity  from  compulsory 
process  to  serve  as  witnesses,  in  spite  of  the  American  contention  that 
the  provision  was  in  violation  of  the  guarantee  of  compulsory  process 
for  obtaining  witnesses  to  persons  accused  of  crime  in  the  Fifth 
Amendment  of  the  Constitution,  and  thus  beyond  the  competence 
of  the  treaty-making  power.  The  United  States  acquiesced  after  a 
considerable  controversy  and  made  amends  for  the  arrest  of  the 
French  consul  which  had  actually  occurred,  although  instructions 
were  issued  to  avoid  the  inclusion  of  such  provisions  in  future 
treaties."*^ 

It  appears  that  foreign  nations  are  expected  to  know  what 
organs  are  authorized  by  the  Constitution  to  conclude  international 
agreements  of  various  kinds,  but  with  respect  to  constitutional 
limitations  upon  the  power  of  these  organs,  they  are  entitled  to 
infer  from  the  statements  or  silence  of  the  President  at  the  time, 
that  the  Constitution  has  been  followed. 

"  It  is  a  principle  of  international  law,"  says  Willoughby,  "  that  one 
Nation  in  its  dealings  with  another  Nation  is  not  required  to  know,  and, 
therefore,  is  not  held  to  be  bound  by,  the  peculiar  constitutional  structure  of 


no  doubt  that  the  position  which  Maine  has  assumed  is  the  only  obstacle  to 
bringing  such  a  compromise  about.  The  English  government  can  not  treat 
with  us  about  a  compromise,  unless  we  say  we  have  authority  to  con- 
summate what  we  agree  to ;  and  although  I  entertain  not  the  slightest  doubt 
of  the  just  authority  of  this  government  to  settle  this  question  by  compro- 
mise, as  well  as  in  any  other  way,  yet  in  the  present  position  of  affairs,  I 
suppose  it  will  not  be  prudent  to  stir,  in  the  direction  of  compromise  with- 
out the  consent  of  Maine."  (Mr.  Webster,  Sec.  of  State,  to  Mr.  Kent,  Gov. 
of  Maine,  Dec.  21,  1841,  Moore,  Digest,  5:  174,  infra,  sec.  50.)  The  terms 
of  the  agreement  with  Maine  and  Massachusetts  were  included  in  article  5 
of  the  treaty  with  Great  Britain.  The  same  principle  doubtless  applies  to 
constitutional  limitation  upon  the  treaty  power  arising  from  rights  guaran- 
teed to  individuals  and  the  rights  and  privileges  of  departments  of  the 
national  government  as  well  as  rights  guaranteed  the  states.  The  tend- 
ency, however,  has  been  to  minimize  the  application  of  these  limitations 
and  where  necessity  presses  as  in  treaties  of  peace  to  end  a  disastrous 
war,  doubtless  the  ostensible  authority  of  the  executive  even  of  a  de  facto 
government  would  fully  bind  the  nation.  (Kent,  op.  cit.,  1 :  166-167,  Wright, 
Am.  Jl.  Int.  Law,  13:  249-250,  infra,  sec.  32.) 

^^  Moore,  Digest,  5 :  80,  167.    Infra,  sees,  45,  46. 


ACTS  AND  UTTERANCES  OF  NATIONAL  ORGANS.  57 

that   other    Nation.     It   is   required,   indeed,   to   know   what   is   the    govern- 
mental organ  through  which  treaties  are  to  be  ratified."  ^^ 

32.  Treaty  Made  under  Necessity. 

One  general  exception  to  this  rule  may  be  noticed.  In  case  of 
necessity  any  treaty  whatever,  even  if  made  under  mere  rf^/ac^o  au- 
thority, is  valid  under  international  law.  While  international  law  rec- 
ognizes coercion  of  the  negotiators  of  a  treaty  as  grounds  for  void- 
ing a  treaty,  it  does  not  so  recognize  coercion  of  the  state.®"  All  com- 
mentators agree  that  in  case  an  unfortunate  war  necessitated,  the 
treaty  power  might  cede  state  territory  without  state  consent  or 
impair  the  Republican  form  of  government  in  a  state  by  accepting 
a  monarchical  protectorate.^^  This  would  be  valid  even  though 
the  government  under  the  Constitution  were  overthrown  and  a  de 
facto  government  with  neither  President  nor  Senate  set  up  in  its 
stead  were  the  only  authority  concerned  in  making  the  treaty.  It 
has  been  suggested  that  the  phraseology  of  Article  VI,  whereby 
treaties  are  supreme  law  if  made  "  under  the  authority  of  the  United 
States  "  and  need  not,  as  statutes,  "  be  made  in  pursuance  "  of  the 
Constitution,  gives  authority  for  this  plenary  power  of  treaty 
making.®^  If  that  were  accepted,  however,  it  would  free  the  treaty 
power  of  constitutional  restrictions  in  times  of  tranquility  as  well 
as  of  necessity,  a  view  which  is  not  accepted.  The  better  view 
seems  to  admit  that  such  a  treaty  would  be  unconstitutional  in 
its  origin  but  would  be  valid  under  international  law  upon  the 
principle   of    self-preservation. 


59  Willoughby,  op.  cit.,  i :  515. 
^"  Crandall,  op.  cit.,  p.  4. 

61  Crandall,  op.  cit.,  pp.  227-229;  Wright,  Am.  Jl.  Int.  Law,  13:  250. 

62  See  Congressman  D.  J.  Lewis,  Feb.  17,  1917,  Cong.  Rec,  64th  Cong., 
2d  Sess.,  p  4205,  quoted,  Wright.  Am.  Jl.  Int.  Law,  13:  249,  and  Holmes,  J. 
in  Mo.  v.  Holland,  U.  S.  Sup.  Ct.,  April  19,  1920:  "Acts  of  Congress  are  the 
supreme  law  of  the  land  only  when  made  in  pursuance  of  the  Constitution, 
while  treaties  are  declared  to  be  so  when  made  under  the  authority  of 
the  United  States.  It  is  open  to  question  whether  the  authority  of  the 
United  States  means  more  than  the  formal  acts  prescribed  to  make  the 
convention."  See  also  Kent,  Commentaries,  i :  166,  176.  The  different 
phraseology  was  actually  introduced  to  assure  the  validity  of  treaties  con- 
cluded by  the  United  States  before  1789.  Rawle,  On  the  Constitution,  p. 
60;  Farrand,  op.  cit.,  2:  417. 


58       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

C.  With  Reference  to  the  Meeting  of  International  Responsibilities. 

33.  United  States  Bound  by  International  Lazv  and  Treaties. 

Are  foreign  nations  entitled  to  consider  the  President's  interpre- 
tation of  the  international  responsibilities  of  the  United  States  as 
authoritative?  We  have  noticed  that  the  United  States,  as  a  sov- 
ereign nation,  is  under  international  responsibilities,  only  in  so  far 
as  such  responsibilities  have  been  accepted  by  organs  acting  within 
their  apparent  constitutional  powers.®^  General  international  law 
is  presumed  to  have  been  tacitly  accepted  by  the  United  States  on 
becoming  a  member  of  the  family  of  nations.^*     Treaties  are  formal 


63  Supra,  sec.  24 

6*  Maine,  International  Law,  N.  Y.,  1888,  p.  ^y,  infra,  sec.  258.  Dupon- 
ceau,  Jurisdiction  of  the  Courts  of  the  U.  S.,  Philadelphia,  1824,  p.  3,  has 
expressed  the  same  view :  "  The  law  of  nations,  being  the  common  law  of 
the  civilized  world,  may  be  said  indeed  to  be  a  part  of  the  law  of  every 
civilized  nation ;  but  it  stands  on  other  and  higher  grounds  than  municipal 
customs,  statutes,  edicts  or  ordinances.  It  is  binding  on  every  people  and 
on  every  government.  It  is  to  be  carried  into  effect  at  all  times  under  the 
penalty  of  being  thrown  out  of  the  pale  of  civilization  or  involving  the 
country  in  war.  Every  branch  of  the  national  administration,  each  within 
its  district  and  its  particular  jurisdiction,  is  bound  to  administer  it.  It  de- 
fines offenses  and  affixes  punishments  and  acts  everywhere  propria  vigore, 
whenever  it  is  not  altered  or  modified  by  particular  national  statutes  or 
usages  not  inconsistent  with  its  great  and  fundamental  principles.  Whether 
there  is  or  not  a  national  common  law  in  other  respects,  this  unii'ersal 
common  lazv  can  never  cease  to  be  the  rule  of  executive  and  judicial  proceed- 
ings until  mankind  shall  return  to  the  savage  state."  The  Supreme  Court 
said  in  Ware  v.  Hylton,  through  Wilson,  J. :  "  When  the  United  States  de- 
clared their  independence,  they  were  bound  to  receive  the  law  of  nations  in 
its  modern  state  of  purity  and  refinement."  (3  Dall.  199,  281,  1796.)  So 
also  Secretary  of  State  Webster :  "  Every  nation,  on  being  received,  at  her 
own  request,  into  the  circle  of  civilized  governments,  must  understand  that 
she  not  only  attains  rights  of  sovereignty  and  the  dignity  of  national  char- 
acter, but  that  she  binds  herself  also  to  the  strict  and  faithful  observance  of 
all  those  principles,  laws  and  usages  which  have  obtained  currency  among 
civilized  states  and  which  have  for  their  object  the  mitigation  of  the 
miseries  of  war."  (Letter  to  Mr.  Thompson,  Minister  to  Mexico,  April  15, 
1842,  Moore,  Digest,  i :  5.)  Willoughby  calls  attention  to  the  evidence  that 
the  United  States  actually  has  accepted  general  international  law :  "  The 
federal  constitution  provides  that  Congress  shall  have  the  power  to  define 
and  punish  offenses  against  the  law  of  nations,  and  to  make  rules  concern- 
ing captures  on  land  and  water.  Furthermore,  it  is  declared  that  treaties 
made  under  the  authority  of  the  United  States  shall  be  the  supreme  law  of 


ACTS  AND  UTTERANCES  OF  NATIONAL  ORGANS.  ^9 

modifications  of  the  general  law  of  nations  with  respect  to  the 
parties,  and  are  only  valid  when  expressly  accepted  through  ratifi- 
cation by  the  proper  constitutional  process.  But  when  consent 
has  been  given  whether  tacitly  or  expressly,  foreign  nations  can 
hold  the  United  States  bound  for  the  future. 

34.  Decisions  by  the  President. 

"VVe  have  noticed  that  international  law  requires  that  every 
independent  government  maintain  a  representative  organ  able  to  dis- 
cuss with  and  give  satisfaction  to  foreign  nations  for  demands 
based  on  international  law  and  treaty. ^^  We  have  seen  that  foreign 
nations  have  recognized  the  President  acting  through  the  Depart- 
ment of  State  as  the  representative  organ  of  the  United  States."' 
It  follows  that,  with  respect  to  the  meeting  of  international  respon- 
sibilities, foreign  nations  are  entitled  to  accept  the  President's 
opinion  as  the  authoritative  voice  of  the  United  States.  Thus  if  the  \ 
President  admits  that  international  law  or  treaty  requires  the  pay-  ' 
ment  of  a  sum  of  money,  the  cession  of  territory,  the  dispatch  of 
military  forces,  the  delivery  of  a  fugitive,  or  the  release  of  an  alien  y^ 

held  in  custody,  the  foreign  nation  can  hold  the  United  States 
bound  to  perform  such  an  act,  even  though  Congress,  or  the  states 
or  whatever  other  organ  may  be  endowed  with  the  necessary  legal 
power  to  act  has  not  been  consulted. 

In  practice  foreign  nations  have  acted  on  this  theory.  Where 
the  President  has  given  an  opinion  against  the  contention  of  a 
foreign  nation,  that  nation  may  of  course  continue  discussion  until 
a  decision  has  been  reached  satisfactory  to  it  or  authorized  by  an 
arbitration  court  or  other  body  by  whose  decision  it  has  agreed 
to  be  bound.  Where,  however,  the  President  has  acknowledged  the 
justice  of  a  foreign  claim,  the  foreign  nation  has  held  the  United 
States  bound.     Thus  in  the  McLeod  case,  the  Italian  lynching  cases 


the  land.  The  effect  of  these  clauses  which  recognize  the  existence  of  a 
body  of  international  laws  and  the  granting  to  Congress  of  the  power  to 
punish  offenses  against  them,  the  courts  have  repeatedly  held  is  to  adopt  these 
laws  into  our  municipal  law  en  bloc  except  where  Congress  or  the  treaty- 
making  power  has  expressly  changed  them."     (Op.  cit.,  p.  1018.) 

65  Supra,  sec.  11. 

*8  Supra,  sec.  12. 


60       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

and  the  Panama  Canal  tolls  controversy  the  ultimate  acknowledg- 
ment by  the  President  of  an  obligation  to  return  McLeod,®^  to  pay 
damages^^  and  to  charge  equal  tolls  upon  American  vessels  using 
the  CanaP^  made  the  cases  res  adjudicata. 

In  many  cases  it  would  doubtless  be  expedient,  in  some  it  is 
required  by  constitutional  law/"  and  in  others  it  is  required  by  con- 
stitutional understanding/^  that  the  President  assure  himself  of 
the  needed  cooperation  of  other  departments  before  interpreting 
an  international  responsibility  or  acknowledging  a  specific  obligation 
flowing  therefrom,  but  the  foreign  nation  is  not  obliged  to  concern 
itself  with  such  questions.  It  is  entitled  to  present  all  international 
claims  to  the  President  and  to  hold  his  voice  as  the  voice  of  the 
nation  with  respect  to  their  settlement. 

35,  Decisions  by  Subordinates  to  the  President. 

This  is  true  of  agents  acting  under  authority  of  the  President 
unless  their  action  is  promptly  repudiated  by  the  President.  Thus 
if  a  representative  of  the  President  should  sit  in  the  Council  of  the 
League  of  Nations  and  admit  that  a  guarantee  undertaken  by 
treaty  by  the  United  States  required  the  use  of  armed  forces  in  a 
specific  manner  under  existing  circumstances,  the  United  States 
would  be  bound  to  carry  out  the  treaty  in  that  precise  manner.'^^ 
The  proposed  Hitchcock  reservation  to  Article  X  of  the  Covenant, 
while  not  impairing  the  obligation  of  the  United  States  to  fulfiil 


8'^  Moore,  Digest',  6:  261. 

«"  Moore,  Digest,  6:  839,  849. 

*" "  In  my  own  judgment,  very  fully  considered  and  maturely  formed, 
that  exemption  ...  is  in  plain  contravention  of  the  treaty  with  Great  Britain 
concerning  the  canal,  concluded  on  November  18,  1901."  (President  Wilson, 
Message  to  Congress,  March  5,  1914,  Cong.  Rec,  51 :  4313.) 

""*  Infra,  sees.  143-145. 

^1  Infra,  sec.  251. 

■^2  This  interpretation  of  the  Covenant  is  contained  in  the  Swiss  official 
commentary.  "  The  Council  may  formulate  obligatory  advice  unanimously 
only  and  solely  for  its  own  members  and  for  other  states  invited  in  the 
specific  instance  to  be  represented  on  the  Council,  Art.  4,  par.  5."  This  im- 
plies that  for  states  whose  representatives  have  consented,  the  advice  is 
obligatory.  See  the  League  of  Nations,  published  by  the  World  Peace 
Foundation,  III,  No.  3,  p.  125. 


ACTS  AND  UTTERANCES  OF  NATIONAL  ORGANS.  61 

the  guarantee,  transferred  the  representative  powers  of  the  Pres- 
ident to  Congress  in  this  respect,  by  indicating  that  the  representative 
on  the  Council  was  not  competent  to  acknowledge  an  obligation 
owed  by  the  United  States  and  expressly  stating  that  Congress 
remained  free  to  interpret  the  obligation  according  to  its  own 
"conscience  and  judgment."  ''^  The  same  result  could  of  course 
be  obtained  by  transferring  control  of  the  American  representative 
in  the  Council  to  the  Congress,  but  this,  as  proved  by  the  experience 
of  congressional  control  of  diplomats  during  the  revolutionary 
period,  would  hardly  be  expedient.'* 

36.  Decisions  by  International  Organs  Authorized  by  the  President. 
The  same  binding  obligation  flows  from  the  decisions  of  inter- 
national courts  of  justice  or  arbitration  acting  on  cases  submitted  by 
the  President.  As  the  President  can  himself  interpret  the  obliga- 
tions of  the  United  States,  or  do  so  through  agents  in  conference 
with  the  representatives  of  other  nations,  so  he  can  do  so  through 


^3  Article  X  reads :  "  The  members  of  the  League  undertake  to  respect 
and  preserve  as  against  external  aggression  the  territorial  integrity  and 
existing  political  independence  of  all  Members  of  the  League.  In  case  of  any 
such  aggression  the  Council  shall  advise  upon  the  means  by  which  this 
obligation  shall  be  fulfilled."  The  proposed  Hitchcock  reservation  reads : 
"  That  the  advice,  mentioned  in  Article  X  of  the  Covenant  of  the  League, 
which  the  Council  may  give  to  the  member  nations  as  to  the  employment  of 
their  naval  and  military  forces,  is  merely  advice,  which  each  member  nation 
is  free  to  accept  or  reject,  according  to  the  conscience  and  judgment  of  its 
then  existing  government,  and  in  the  United  States  this  advice  can  be  ac- 
cepted only  by  action  of  the  Congress  at  the  time,  it  being  Congress  alone, 
under  the  Constitution  of  the  United  States,  having  the  power  to  declare 
war."  The  proposed  Lodge  reservation  to  Article  X  did  not  affect  merely 
the  authority  to  interpret  Article  X,  but  under  it  the  United  States  refused 
to  accept  the  guarantee  of  Article  X  altogether.  For  text  of  these  reserva- 
tions and  notes  upon  the  votes  received  in  the  Senate,  see  The  League  of 
Nations,  III,  No.  4  (August,  1920). 

'^*  See  Hamilton,  The  Federalist,  No.  22,  Ford  ed.,  p.  141 ;  and  Fish, 
American  Diplomacy,  N.  Y.,  1916,  pp.  60,  77;  "The  experience  of  the 
Continental  Congress  was  most  useful  to  the  country.  ...  It  had  made  it 
clear  that  a  most  serious  defect  was  in  the  absence  of  an  executive,  clothed 
with  sufficient  power  and  dignity  to  properly  conduct  intercourse  with  foreign 
sovereigns.  .  .  .  An  attempt  had  been  made  to  supply  these  wants  by  the 
creation  of  various  committees  or  boards.  .  .  .  The  experience  of  the  con- 
federation with  its  various  boards  was  most  unsatisfactory  and  sometimes 
pathetic."    Foster,  Century  of  Am.  Diplomacy,  N,  Y.,  1901,  pp.  103-104. 


62       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

submission  to  an  international  court.  It  is  true  that  under  the 
contitution,  such  submissions  must,  if  involving  national  claims 
or  claims  against  the  United  States,  be  by  general  or  special  treaty 
to  which  the  Senate  has  consented,'^^  but  since  the  function  of  a 
court  of  arbitration  is  to  decide  on  obligations  and  not  to  make 
agreements,  the  foreign  nation  is  not  obliged  to  take  cognizance  of 
such  constitutional  provisions.  It  can  hold  the  arbitrated  case 
res  adjudicata  even  though  the  President  exceeded  his  powers  in 
submitting  it.''^ 

^y.  Meeting   Responsibilities   Distinguished   from   Making   Agree- 
ments. \ 

It  will  be  observed  that  while  foreign  nations  are  entitled  to 
accept  the  President's  statements  absolutely  with  respect  to  meeting 
international  responsibilities,  it  can  only  accept  them  presumptively 
with  respect  to  making  international  agreements.  It  is,  therefore, 
important  to  distinguish  between  these  two  acts.  Usually  the  line 
is  clear  enough.  In  the  case  of  treaties,  steps  up  to  and  including 
the  exchange  of  ratifications  are  making  the  treaty  steps  afterward 
are  meeting  the  responsibility.  Thus  tlie  Senate  has  a  part  in 
the  making  of  treaties  as  it  must  give  its  advice  and  consent  before 
ratification.  The  House  of  Representatives,  however,  is  concerned 
only  with  meeting  responsibilities  under  them  as  pointed  out  by 
President  Washington  in  the  controversy  over  the  Jay  treaty.''^ 
One  hundred  and  twenty-five  years  later  Former  Secretary  of  State 
Root  explained  the  same  point.'^^ 

"  The  making  of  a  treaty  ...  is  a  solemn  assurance  to  all  the  nations 
that  (the  subject  matter)  is  within  the  treaty  making  power  and  that  the 
promise  to  make  war  binds  Congress  as  fully  as  it  binds  all  other  members 


■^5  Infra,  sec.  148. 

78 "  Recourse  to  arbitration  implies  an  engagement  to  submit  in  good 
faith  to  the  award."  I  Hague  Conventions,  1907,  act.  2)7-  See  also  infra, 
sec.  62. 

''''  Message  to  House  of  Rep.,  March  30,  1796.  Richardson,  Messages, 
1 :  195,  Moore,  Digest,  5 :  225. 

''^  Telegram  to  Governor  Cox,  October  21,  1920.  See  also  Hamilton,  Pa- 
cificus  Paper,  quoted  Corwin,  The  President's  Control  of  Foreign  Relations, 
p.  14;  Taft,  op.  clt.,  p.  115. 


ACTS  AND  UTTERANCES  OF  NATIONAL  ORGANS.  63 

of  our  government  to  maintain  the  plighted  faith  of  the  United  States.  In  all 
governments  the  power  to  declare  war  rests  somewhere,  and  an  agreement 
to  make  war  is  an  agreement  that  that  power  shall  be  so  exercised  by  the  oflEicers 
in  whom  it  rests.  A  refusal  of  Congress  to  pass  the  necessary  resolution 
would  simply  be  a  breach  of  the  treaty." 

Consequently  though  failure  of  the  Senate  to  consent  can  be 
offered  to  foreign  nations  as  a  vaHd  excuse  for  non-ratification/® 
failure  of  the  House  of  Representatives  to  pass  an  appropriation, 
declare  war  or  take  other  measures  necessary  to  give  effect  to  a 
ratified  treaty  can  not  be  offered  as  an  excuse  for  avoiding  the 
r_',ponsibility.^'' 

"  If  a  treaty,"  says  Dana,  "  requires  the  payment  of  money,  or  any  other 
special  act,  which  cannot  be  done  without  legislation,  the  treaty  is  still 
binding  on  the  nation ;  and  it  is  the  duty  of  the  nation  to  pass  the 
necessary  laws.  If  that  duty  is  not  performed,  the  result  is  a  breach  of  the 
treaty  by  the  nation,  just  as  much  as  if  the  breach  had  been  an  affirmative 
act  by  any  other  department  of  the  government.  Each  nation  is  responsible 
for  the  right  working  of  the  internal  system,  by  which  it  distributes  its  sov- 
ereign functions ;  and,  as  foreign  nations  dealing  with  it  cannot  be  per- 
mitted to  interfere  with  or  control  these,  so  they  are  not  to  be  affected  or 
concluded  by  t!;..xn  to  their  own  injury." 

38.  Interpretation  of  Treaties. 

But  what  of  the  interpretation  of  a  treaty?  Is  interpretation 
a  step  in  the  making,  or  in  the  execution  of  the  treaty?  Interpre- 
tation is  essentially  a  judicial  function  but  there  has  been  a  long 
controversy  as  to  whether  judges  make  law  or  merely  apply  it.  The 
familiar  saying  of  Bishop  Hoadley,  "Whoever  hath  an  absolute 
authority  to  interpret  any  written  or  spoken  laws,  it  is  he  who  is 
truly  the  law  giver  to  all  intents  and  purposes,"  points  to  the  former 


■^9  Supra,  sees.  24-26. 

80  Dana,  note  to  Wheaton,  Int.  Law,  sec.  543,  p.  715.  See  also  Wil- 
loughby,  op.  cit.,  p.  515;  Moore,  Digest,  5:  230.  "A  treaty  though  complete 
in  itself,  and  the  unquestioned  law  of  the  land,  may  be  inexecutable  without 
the  aid  of  an  act  of  Congress.  But  it  is  the  constitutional  duty  of  Congress 
to  pass  the  requisite  laws.  But  the  need  of  further  legislation,  however, 
does  not  affect  the  question  of  the  legal  force  of  the  treaty  per  se." 
Cushing,  Att.  Gen.,  6  Op.  291,  1854;  Moore,  Digest,  5:  226,  370. 


64       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

view.*^  The  true  distinction  seems  to  depend  upon  the  generality 
or  concreteness  of  the  interpretation.  Where  judicial  interpreta- 
tions of  the  law  extend  to  merely  the  case  before  them,  judges  do 
not  make  law.  Where  their  opinions  furnish  precedents  for  the 
future  they  do.  Thus  if  an  interpretation  of  law  merely  renders 
the  controversy  res  adjudicata,  it  is  not  law-making.  If,  on  the 
other  hand,  the  principle  stare  decisis  is  applied  the  interpretation 
assumes  a  legislative  character.*^ 

The  same  distinction  exists  in  the  decision  of  international 
controversies.  A  decision  upon  the  applicability  of  a  treaty,  or  a 
principle  of  international  law  to  a  particular  case,  and  the  deter- 
mination of  the  obligation  resulting  therefrom,  has  to  do  with 
the  meeting  of  the  responsibility  and  not  with  the  making  of  the 
treaty  or  the  principle  of  law.  Consequently  foreign  nations  are 
entitled  to  hold  a  controversy  upon  which  decision  has  been  made 
under  authority  of  the  President,  res  adjudicata.  But  can  they 
regard  such  a  decision  and  the  interpretation  of  international  law 
or  treaty  upon  which  it  is  based  as  going  farther  than  this  and  as 
binding  the  United  States  when  similar  controversies  arise  in  the 
future.*^ 

"  The  President,"  says  ex-President  Taft,  "  carries  on  the  correspondence 
through  the  State  Department  with  all  foreign  countries.  He  is  bound  in 
such  correspondence  to  discuss  the  proper  construction  of  treaties.  He 
must  state  our  attitude  upon  questions  constantly  arising.  While  strictly 
he  may  not  bind  our  government  as  a  treaty  would  bind  it,  to  a  definition  of 
its  rights,  still  in  future  discussions  foreign  Secretaries  of  other  countries 
are  wont  to  look  for  support  of  their  contentions  to  the  declarations  and 
admissions  of  our  Secretaries  of  State  in  other  controversies  as  in  a  sense 
binding  upon  us.  There  is  thus  much  practical  framing  of  our  foreign 
policies  in  the  executive  conduct  of  our  foreign  relations. 

"  Sermon  preached  before  the  King,  1717,  Works,  15th  ed.,  p.  12,  Gray, 
Nature  and  Sources  of  the  Law,  pp.  100,  120.  "  Statutory  construction  is 
practically  one  of  the  greatest  of  executive  powers.  .  .  .  One  might  say,  .  .  . 
Let  any  one  make  the  laws  of  the  country  if  I  can  construe  them."  (Taft, 
Our  Chief  Magistrate,  p.  78.)  "  I  recognize  that  judges  do  and  must  legis- 
late. But  they  can  do  so  only  interstitially :  they  are  confined  from  molar 
to  molecular  motions."  (Holmes,  J.,  dissent  in  Southern  Pacific  v.  Jensen, 
244,  U.  S.  205,  19^7-) 

82  See  Gray,  op.  cit.,  chap.  IX,  and  especially  sec.  498;  Cooley,  Constitu- 
tional Limitations,  6th  ed.,  pp.  61-68. 

"Taft,  op.  cit.,  p.  113,  see  also  infra,  sec.  172. 


ACTS  AND  UTTERANCES  OF  NATIONAL  ORGANS.  65 

"  Whenever  our  American  citizens  have  claims  to  present  against  a 
foreign  nation,  they  do  it  through  the  President  by  the  State  Department 
and  when  foreign  citizens  have  claims  to  present  against  us,  they  present 
them  through  their  diplomatic  representatives  to  our  State  Department, 
and  the  formulation  and  the  discussion  of  the  merits  of  those  claims  create 
an  important  body  of  precedents  in  our  foreign  policy." 

As  President  Taft  points  out,  it  is  inevitable  that  the  principle  of 
stare  decisis  will  be  of  weight  in  the  settlement  of  future  contro- 
versies and  consequently  that  executive  practice  will  in  fact  es- 
tablish an  interpretation  of  responsibilities  from  which  it  will  be 
difficult  for  future  Presidents  to  escape.  In  theory,  however,  it 
is  believed  that  foreign  nations  can  not  hold  the  United  States 
absolutely  bound  by  decisions  or  interpretations  under  authority  of 
the  President  alone,  except  with  reference  to  the  specific  contro- 
versy under  discussion.^*  Thus  explanatory  or  interpretive  notes, 
designed  to  control  the  general  application  of  a  treaty  in  the  future, 
are  part  of  its  making,  whether  they  precede,  accompany,  or  follow 
exchange  of  ratifications  and  do  not  internationally  bind  the  United 
States  unless  foreign  nations  had  reason  to  suppose  that  the  full 
treaty  power  had  consented  to  them.®^ 


**In  the  Pious  Fund  Arbitration  Case  (U.  S.  v.  Mexico),  1903,  the 
court  held  that  while  the  principle  stare  decisis  was  not  wholly  applicable  to 
arbitration,  the  principle  of  res  adjudicata  was : 

"  Considering  that  all  the  parts  of  the  judgment  or  the  decree  con- 
cerning the  points  debated  in  the  litigation  enlighten  and  mutually  supple- 
ment each  other,  and  that  they  all  serve  to  render  precise  the  meaning  and 
the  bearing  of  the  dispositif  (decisory  part  of  the  judgment)  and  to  de- 
termine the  points  upon  which  there  is  res  judicata  and  which  thereafter 
can  not  be  put  in  question; 

"  Considering  that  this  rule  applies  not  only  to  the  judgments  of  tribunals 
created  by  the  State,  but  equally  to  arbitral  sentences  rendered  within  the 
limits  of  the  jurisdiction  fixed  by  the  compromise; 

"  Considering  that  this  same  principle  should  for  a  still  stronger  reason 
be  applied  to  international  arbitration,  etc."  (Wilson,  Hague  Arbitration 
Cases,  Boston,  1915,  p.  9.) 

^5  The  United  States  refused  to  consider  itself  bound  by  explanatory 
notes  exchanged  prior  to  exchange  of  ratification  of  the  Mexican  peace  treaty 
of  1848  and  the  Clayton-Bulwer  treaty  of  1850  though  Mexico  and  Great 
Britain  protested.  See  Moore,  Digest,  5:  205-206;  Crandall,  op.  cit.,  pp. 
85,  381;  Wright,  Minn.  Law  Rev.,  4:  16;  supra,  sees.  27,  28.  It  has  been  the 
usual  practice  to  submit  such  explanatory  notes  to  the  Senate,  See  Cran- 
dall, op.  cit.,  pp.  86-89;  Moore,  Digest,  5:  207,  284. 


66       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

39.  Understandings  do  not  Require  Forbearance  in  Pressing  Inter- 
national Claims. 
The  distribution  of  constitutional  powers  among  various  organs 
in  the  national  and  state  governments  of  the  United  States  often 
makes  it  very  difficult  for  the  President  actually  to  satisfy  claims 
which  he  has  admitted  to  be  valid  under  international  law.  In  fact 
these  constitutional  limitations  are  well  known  to  foreign  nations. 
The  United  States  has  sometimes  urged  such  difficulties  as  an 
excuse  for  failure  to  meet  the  obligation  promptly.  While  such 
a  plea  has  no  validity  whatever,  under  international  law^®  it  remains 
to  be  seen  whether  there  is  an  international  understanding  whereby 
nations  withhold  pressure  on  just  claims  in  view  of  constitutional 
difficulties  in  the  delinquent  state. 

"  Every  nation,"  said  Justice  McLean,  "  may  be  presumed  to  know  that, 
so  far  as  the  treaty  stipulates  to  pay  money,  the  legislative  sanction  is 
required.  .  .  .  And  in  such  a  case  the  representative  of  the  people  and  the 
States  exercise  their  own  judgment  in  granting  or  withholding  the  money. 
They  act  upon  their  own  responsibility  and  not  upon  the  responsibility 
of  the  treaty-making  power."  ^^ 

The  theory  is  attractive  for  delinquent  states.  Unfortunately 
for  them  it  is  not  practiced.  No  such  understanding  of  interna- 
tional law  exists.  The  United  States  did  not  withhold  pressure 
from  France  when  she  pleaded  the  refusal  of  her  legislature  to 
appropriate  for  carrying  out  the  claims  treaty  of  1831.^®  Nor  have 
European  nations  withheld  pressure  from  the  United  States  in 
similar  circumstances.  Congress  has  always,  though  generally  with 
much  protestation  by  the  House  of  its  untrammeled  discretion, 
appropriated  money  where  treaty  or  international  law  has  required,^® 
but  the  states  have  often  failed  in  performing  essential  acts.  Thus 
Louisiana  failed  to  take  sufficient  interest  in  apprehending  those 


^^  See  supra,  sec.  ^3  et  seq. 

87  Turner  v.  Am.  Baptist  Missionary  Union,  5  McLean,  347,  1852,  para- 
phrased in  Wharton,  Digest,  2:   73;   Moore,   Digest,  5:  222. 

88  President  Jackson  recommended  reprisals  on  this  occasion.  (Moore, 
Digest,  7:  123-126.)  See  also  note  of  Secretary  of  State  Livingston  to  the 
French  government,  supra,  chap,  i,  note  3,  and  of  Mr.  Wheaton,  Mjnisfer 
to  Copenhagen,  to  Mr.  Butler,  Attorney  General,  Jan.  20,  1835.  *  Wharton, 
Digest,  1 :  36. 

^^  Infra,  sees.  149,  256, 


ACTS  AND  UTTERANCES  OF  NATIONAL  ORGANS.  67 

guilty  of  lynching  Italians  in  the  nineties,  nor  did  she  take  measures 
adequate  to  prevent  the  frequent  repetition  of  these  gross  violations 
of  the  Italian  treaty  of  1871.  In  the  state  of  congressional  legis- 
lation the  power  of  the  national  government  to  act  within  the  states 
was  not  adequate  and  Italy  was  so  informed  hut  there  was  no 
abatement  of  diplomatic  pressure.  In  fact,  Italy  at  length  with- 
drew her  ambassador  and  the  United  States  was  forced  to  pay  the 
indemnity  demanded.®" 

Experience  seems  to  show  that  it  is  unwise  to  assume  the  exist- 
ence of  such  international  understandings.  Nations  are  wont  to 
demand  the  pound  of  flesh.  "  To  calculate  upon  real  favors  from 
nation  to  nation,"  said  Washington,  "  is  an  illusion  which  expe- 
rience must  cure,  which  a  just  pride  ought  to  discard."  "^  Such 
understanding  may  be  well  to  follow  in  pressing  claims  against 
others  but  to  expect  that  others  will  observe  them  in  pressing 
claims  against  us  is  unwise.'-  The  United  States  should  so 
modify  its  laws  and  the  understandings  of  its  own  constitution  that 
acknowledged  obligations  of  the  nation  under  international  law  and 
treaty  will  be  promptly  executed. 

Thus  from  the  standpoint  of  international  law,  the  national 
authority  for  meeting  international  responsibilities  is  the  important 
element  in  the  control  of  foreign  relations,  and  in  the  United  States 
this  authority  is  the  President  acting  through  the  Secretary  of  State. 
Foreign  nations  are  entitled  to  bring  their  grievances  to  him  and  to 
expect  from  him  redress  according  to  the  standard  of  international 
law  and  treaty.  Constitutional  limitations  upon  his  power  to  effect 
the  redress  are  to  them  unknown,  either  by  law  or  understanding. 
With  the  making  of  international  agreements  on  the  other  hand 

9°  Moore,   Digest,  6 :   838  et  seq.     See  also  infra,  sees.   120,   149. 

91  Farewell  Address,   Sept.   17,   1796,  Richardson,  op.  cit.,  i  :  223. 

92  Vattel  makes  a  similar  distinction:  "Since  the  necessary  (natural  or 
moral)  law  is  at  all  times  obligatory  upon  the  conscience,  a  Nation  must 
never  lose  sight  of  it  when  deliberating  upon  the  course  it  must  pursue  to 
fulfill  its  duty;  but  when  there  is  a  question  of  what  it  can  demand  from 
other  states,  it  must  consult  the  voluntary  (positive)  law  whose  rules  are 
devoted  to  the  welfare  and  advancement  of  the  universal  society,"  op.  cit.. 
Introduction,  sec.  28. 


68       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

foreign  nations  are  entitled  to  assume  no  such  Presidential  omnipo- 
tence. The  United  States  cannot  be  bound  by  new  engagements 
until  the  organs  designated  by  the  Constitution  have  acted.  In  the 
meeting  of  international  responsibilities,  international  law  is  prior, 
in  the  making  of  international  engagements  the  Constitution  is 
prior. 


PART  III. 

Constitutional  Limitations  upon  the  Foreign 
Relations  Power. 


CHAPTER  V. 

Limitations  upon  State  Powers. 

40.  Position  of  the  Foreign  Relations  Power  under  Constitutional 
Law. 

From  the  standpoint  of  international  law  the  essential  element 
in  the  foreign  relations  power  of  any  state  is  the  authority  rec- 
ognized by  foreign  states  as  representing  the  state  and  competent  to 
meet  its  international  resj)onsibiHties.  We  have  seen  that  in  the 
United  States  this  authority  is  the  President  acting  through  the 
Department  of  State.  Foreign  states  with  claims  or  complaints  need 
know  nothing  of  constitutional  powers  or  limitations.  They  are 
entitled  to  present  their  cases  to  the  President  through  the  State 
Department  and  to  demand  of  him  satisfaction  according  to  the 
measure  of  international  law  and  treaty.  If  he  is  unable  to  obtain 
it  the  United  States  is  liable  to  such  measures  of  redress  as  inter- 
national law  may  permit  the  claimant  state. 

In  sharp  contrast,  is  the  position  of  the  foreign  relations  power 
under  constitutional  law.  The  question  is  not  of  responsibility  but 
of  power.  Under  constitutional  law  the  foreign  relations  power 
consists  of  those  organs  of  government  competent  to  perform  the 
various  acts  connected  with  the  conduct  of  foreign  relations. 
These  acts  may  be  classified  as  (i)  the  meeting  of  international 
responsibilities,  (2)  the  making  of  international  agreements  (3) 
the  making  of  national  decisions  of  international  importance.  The 
first  includes  the  observance  and  enforcement  of  international  law 
and  treaty.  The  second  includes  the  settlement  of  international 
controversies  and  the  making  of  treaties.  The  third  includes  the 
recognition  of  facts  and  the  declaration  of  policies  of  international 
significance.  Before  considering  the  constitutional  authority  for 
performing  these  acts,  however,  it  will  be  well  to  recall  certain 
fundamental  principles  of  the  Constitution. 

71 


72       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

41.  Relation  Between  State  and  National  Powers. 

Under  American  constitutional  law  the  legal  competence  of 
any  organ  is  determined  by  two  factors,  the  authorization  of  power 
and  restrictions  upon  the  exercise  of  power.  With  one  hand  the 
people  are  supposed  to  have  granted  certain  powers  expressed  in 
written  constitutions,  to  be  exercised  by  governmental  organs,  for 
the  general  welfare,^  but  with  the  other  hand  they  are  supposed 
to  have  taken  away  in  part  the  powers  thus  granted  through  re- 
strictions upon  their  exercise  expressed  in  bills  of  rights,  guar- 
antees and  prohibitions  for  the  protection  of  private  individuals, 
subordinate  governmental  areas  and  particular  organs  of  the  gov- 
ernment.^ The  authority  for  all  powers  exercised  by  organs  of 
the  national  government  comes  from  the  federal  Constitution  either 
by  express  or  implied  delegation.  The  authority  for  all  powers 
exercised  by  state  governments  comes  from  their  own  Constitutions 
and  may  include  all  governmental  powers  the  exercise  of  which 
does  not  conflict  with  the  full  exercise  of  its  delegated  powers  by 
the  national  government,  and  is  not  expressly  prohibited  by  the 
federal  Constitution.  This  theory  of  the  division  of  governmental 
authority  between  national  and  state  governments  is  set  forth  in 
the  tenth  amendment  and  the  sixth  article  of  the  federal  Con- 
stitution. 


1 "  The  theory  of  our  political  system  is  that  the  ultimate  sovereignty  is 
in  the  people,  from  whom  springs  all  legislative  authority."  Cooley,  Consti- 
tutional Limitations,  6th  ed.,  p.  39,  citing  McLean,  J.,  in  Spooner  v. 
McConnell,  i  McLean  347,  Waite,  C.  J.,  in  Minor  z:  Happersett,  21  Wall.  162, 
172,  etc.  For  influence  of  the  theories  of  popular  sovereignty  and  the  social 
contract  on  the  constitutional  fathers,  see  Merriam,  Am.  Political  Theories, 
N.  Y.,  1903,  p.  38;  Willoughby,  Am.  Constitutional  System,  N.  Y.,  1904, 
p.  23  et  seq. 

2  The  theory  of  constitutional  limitations  derived  from  the  dogma  of 
separation  of  pov/ers  and  from  the  supposed  division  of  sovereignty  betvi^een 
the  state  and  nation  was  prominent  in  the  federal  convention,  but  the  Fed- 
eralist (No.  84)  thought  a  bill  of  rights  unimportant.  The  JeflFersonian 
Republicans  took  a  different  view  and  succeeded  in  having  the  first  ten 
amendments  attached  to  the  Constittition,  thereby  following  the  usual  cus- 
tom in  state  constitutions.  See  Cooley,  op.  cit.,  chap,  ix,  p.  311  et  seq. 
For  influence  of  theories  of  separation  of  powers,  divided  sovereignty,  and 
natural  rights  upon  the  constitutional  fathers,  see  Merriam,  op.  cit.,  pp.  107, 
J46,  and  Willoughby,  loc.  cit. 


LIMITATIONS  UPON  STATE  POWERS.  73 

"  The  powers  not  delegated  to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States  respectively 
or  to  the  people. 

"  This  Constitution,  and  the  Laws  of  the  United  States  which  shall 
be  made  in  Pursuance  thereof;  and  all  Treaties  made,  or  which  shall  be 
made,  under  the  Authority  of  the  United  States,  shall  be  the  supreme  law 
of  the  Land;  and  the  Judges  in  every  State  shall  be  bound  thereby,  any 
Thing  in  the  Constitution  or  Laws  of  any  State  to  the  Contrary  notwith- 
standing." 

The   system   may  be   characterized   by   the  three  phrases :   national 

delegated  powers,  state  residual  powers,  and  national  supremacy.' 

42.  Constitutional  Prohibitions  of  State  Power. 

Restrictions  upon  the  exercise  of  state  power  may  exist  by  virtue 
of  (i)  express  or  implied  constitutional  prohibitions  or  (2)  as  a 
result  of  action  taken  by  national  governmental  organs.  Consti- 
tutional restrictions  may  be  expressed  in  the  state's  own  Constitu- 
tion or  in  the  federal  Constitution.  In  the  latter  are  several 
express  restrictions  upon  the  exercise  of  state  power.  Some  are  for 
the  protection  of  private  rights  such  as  the  prohibition  of  laws  im- 
pairing the  obligation  of  contracts,  ex  post  facto  laws  and  laws  de- 
priving persons  of  hfe,  liberty  and  property  without  due  process  of 
law.*  Others  are  intended  to  insure  the  centralization  of  power 
in  matters  of  national  interest,  especially  in  the  control  of  for- 
eign relations.  Such  are  the  prohibitions  against  treaty  making, 
war  making,  import,  export  and  tonnage  duties."  In  addition  are 
several  prohibitions  implied  from  the  nature  of  the  federal  union 
such  as  the  prohibitions  against  secession"  and  the  taxation  of 
agencies  of  the  national  government.'^  Other  prohibitions  have 
been  implied  from  the  necessarily  exclusive  character  of  certain 
powers  delegated  to  the  national  government  such  as  the  power 
to  regulate  foreign  commerce,  except  purely  local  regulations,  and 
to  provide  for  the  naturalization  of  aliens.^ 

3  See  Willoughby,  Const.  Law,  pp.  53,  78. 

*  Constitution,  Art.  I,  sec.  10,  cl.   I,  Amendment  XIV. 

^  Ibid.,  Art.  I,  sec.  10. 

« Texas  v.  White,  7  Wall.  700  (1868). 

^McCulloch   V.   Md.,   4   Wheat.   316,   432;   Dobbins   v.   Erie   County,    16 

Pet.  435. 

8  Willoughby,  op.  cit..  pp.  73-74 ;  J.  P.  Hall,  Constitutional  Law,  pp.  254, 
288;  Cooley  V.  Port  Wardens,  12  How.  299;  Chirac  v.  Chirac,  2  Wheat.  259. 


74       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

43.  Action  of  National  Organs  Limiting  State  Powers. 

State  powers  may  also  be  restricted  in  their  exercise  by  the 
principle  of  national  supremacy.  As  national  organs  exercise  more 
and  more  of  their  concurrent  powers,  state  powers  are  correspond- 
ingly reduced.  For  example  when  Congress  passes  bankruptcy 
statutes  or  statutes  fixing  standards  of  weights  and  measures,  the 
state's  power  in  these  fields  is  lost  and  state  statutes  on  the  subject 
automatically  cease  to  operate  though  if  the  national  statute  is  re- 
pealed they  automatically  come  into   force  again.^ 

The  state  police  power  has  been  greatly  restricted  by  the  more 
complete  exercise  by  the  national  government  of  its  powers  to 
regulate  interstate  commerce,  to  establish  postoffices  and  post  roads 
and  to  tax.^°  No  less  remarkable,  however,  has  been  the  reduction 
of  state  powers  through  the  exercise  of  national  powers  relating 
to  foreign  relations.  Thus  wars  have  justified  legislation  by 
Congress  such  as  recently  illustrated  by  the  draft  acts,  acts  author- 
izing railroad,  telegraph,  food  and  fuel  control,  and  acts  punishing 
espionage  and  disloyal  conduct.  These  have  all  entered  fields 
ordinarily  within  state  control.  Similar  reductions  of  state  power 
but  in  less  degree  have  resulted  from  a  state  of  neutrality  and  the 
consequent  operation  of  laws  punishing  ofifenses  against  neutrality, 
authorizing  national  censorship  of  telegraph  and  radio  communica- 
tion and  a  closer  supervision  of  commercial  transactions.  Even 
in  time  of  peace  the  exercise  of  foreign  relations  powers  has  shown 
a  tendency  to  narrow  state  power.  Thus  Congress  has  extended 
the  jurisdiction  of  federal  courts  over  many  cases  involving  treaty 
interpretation,  over  numerous  controversies  where  aliens  or  persons 
especially  protected  by  international  law  are  parties,  and  over  many 
offenses  against  international  law  and  treaty.  Congress  has  also 
given  national  officers  authority  to  enforce  such  treaties  as  those 
protecting  migratory  birds,  and  fish  in  boundary  waters,  and  those 
requiring  extradition  of  criminals  and  prohibition  of  the  white  slave 
traffic.     Many    self-executing    treaties    have    limited    state    power 


^  Willoughby,  op.  cit.,  pp.  74,  779. 

10  See   Cushman,  The   Police  Power  of  the   National  Government,   1920, 
reprinted  from  the  Minn.  Law  Rev.,  vols.  3,  4. 


LIMITATIONS  UPON  STATE  POWERS.  75 

without  congressional  action  such  as  those  according  property  and 
personal  rights  to  aliens/^ 

Although  this  limitation  of  state  powers  by  action  of  national 
organs  has  been  a  patent  phenomenon,  its  constitutionality  has  been 
questioned,  especially  so  far  as  effected  through  exercise  by  the 
national  government  of  its  power  over  foreign  relations.  Thus  it 
has  been  alleged  that  all  state  powers  are  not  merely  residual  but 
that  some,  for  instance  the  police  power,  are  "  reserved "  powers 
incapable  of  limitation  by  any  exercise  of  its  delegated  powers  by 
the  national  government.  It  will  readily  be  seen  that  this  notion  is 
wholly  incompatible  with  the  principle  of  national  supremacy  and 
while  it  has  great  historic  importance,  it  never  commanded  whole- 
hearted support  from  the  courts  and  at  present  enjoys  no  legal 
recognition.^^  The  concept  of  "  reserved  "  powers  is,  however,  of 
importance  as  an  "  understanding"  of  the  Constitution.  In  practice 
both  Congress  and  the  treaty-making  power  have  sometimes  re- 
frained from  fully  exercising  their  powers  out  of  respect  for  state 
susceptibilities,  and  the  courts  have  sometimes  given  rather  strained 
interpretations    to   treaties    for   the    same    reason." 

We  may  conclude  that  state  exercises  of  power  in  the  field  of 
foreign  relations  have  been  so  restricted  that  such  powers  hardly 
exist  at  all. 


11  See  Corwin,  National  Supremacy,  N.  Y.,   1913;   Sutherland,  Constitu- 
tional Power  and  World  Affairs,  N.  Y.,  1919. 

12  Infra.,  sees.  48-51. 
'^^  Infra,  sec.  50. 


CHAPTER  VI. 

Limitations  upon  National  Powers  :  Private  Rights  and 
States'  Rights. 
A.  Private  Rights. 
44.  Nature  of  Prohibitions. 

Restriction  upon  the  exercise  of  power  by  national  organs  may 
be  expressed  in  the  federal  Constitution  or  implied  from  the  rights 
guaranteed  the  states  and  individuals  and  the  independence  guar- 
anteed the  departments  of  government  by  the  federal  Constitution. 
Whether  stated  in  the  negative  form  of  a  prohibition  against  the 
national  government  or  in  the  positive  form  of  a  right  or  privilege 
guaranteed  the  individual,  state,  or  particular  organ  of  government, 
the  effect  is  the  same. 

These  restrictions  fall  into  three  groups,  (i)  Some  are  in 
behalf  of  the  states,  as  those  prohibiting  anti-slave-trade  laws 
before  1808  and  the  freeing  of  fugitive  slaves ;  ^  those  prohibiting 
direct  taxes  except  in  proportion  to  population,  export  taxes  and 
discriminatory  commercial  or  revenue  regulations  or  tariffs ;  ^ 
those  prohibiting  the  formation  of  new  states  within  the  jurisdiction 
of  existing  states  or  the  junction  of  states  without  their  consent  ;^ 
and  those  implied  from  the  guarantee  to  the  states  of  territorial 
integrity,  a  Republican  form  of  government  and  immunity  of  their 
necessary  governmental  organs  from  taxation.*  (2)  A  second  class 
of  restrictions  is  in  behalf  of  the  separation  of  powers  as  that 
prohibiting  members  of  the  House  or  Senate  from  holding  any  office 
under  the  United  States,^  that  prohibiting  appropriations  except  by 
"  law," "  and  those  implied  from  the  privileges  expressly  guaranteed 


^  Constitution,  I,  sec.  9,  cl.  i ;  IV,  sec.  2,  cl.  3. 
^Ihid.,  I,  sec.  9,  cl.  4-6;  sec.  8,  cl.  i. 
3  Ibid.,  IV,  sec.  3,  cl.  i,  2. 

*  Ibid.,  IV,  sec.  4.     See  also  infra,  sec.  48. 
■5  Ibid.,  I,  sec.  6,  cl.  2. 

*  Ihid.,  I,  sec.  9,  cl.  7. 

76 


PRIVATE  RIGHTS  AND  STATES'  RIGHTS.  77 

certain  organs  or  from  the  separation  of  the  legislative,  executive 
and  judicial  departments/  (3)  The  most  numerous  prohibitions 
are  in  behalf  of  individual  rights  and  interests.  Thus  the  indi- 
vidual's supposed  interest  in  democratic  government,  Puritanic 
morals,  and  the  general  welfare  are  protected  by  prohibitions 
against  titles  of  nobility,  the  acceptance  by  officers  of  foreign 
presents,  the  abridgment  of  the  voting  privilege  on  account  of  race, 
color,  previous  condition  of  servitude,  or  sex ;  ^  by  prohibitions 
against  slavery  and  intoxicating  beverages,"  and  by  the  implied 
prohibition  against  taxes  not  for  the  "  general  welfare."  ^°  The 
individual's  interest  in  life,  liberty  and  property  are  especially 
protected  by  prohibitions  against  suspension  of  the  privilege  of 
habeas  corpus  except  in  emergency,  bills  of  attainder  and  ex  post 
facto  laws ;  ^^  prohibitions  against  religious  tests  for  officers, 
against  the  establishment  of  religion,  the  abridgment  of  the  freedom 
of  speech,  press,  assembly,  petition  and  the  bearing  of  arms;^^ 
prohibitions  against  compulsory  quartering  of  troops  in  time  of 
peace,  unreasonable  searches  and  seizures,  the  taking  of  life,  liberty 
or  property  without  due  process  of  law  and  the  taking  of  private 
property  for  public  use  without  just  compensation,^^  and  finally 
prohibitions  designed  to  assure  a  fair  trial,  especially  in  criminal 
cases,  as  the  requirement  of  jury  trial  and  compulsory  process  to 
obtain  witnesses  and  the  prohibition  against  excessive  bail,  double 
jeopardy,  cruel  and  unusual  punishments.^*  Prohibitions  for  the 
protection  of  individual  interests  have  seldom  afifected  the  power 
of  national  organs  in  the  conduct  of  foreign  relations. 


''  See  infra,  sees.  52-55. 

^Ibid.,  I,  sec.  9,  cl.  8;  Amendments  XV,  XIX. 
^Ibid.,   Amendments    XIII,   XVIII. 

^^  Ibid.,  I,  sec.  8,  cl.  i.     See  also  Willoughby,  op.  cit.,  p.  39;  J.  P.  Hall, 
Constitutional  Law,  pp.  173-174. 
^1  Ibid.,  I,  sec.  9,  cl.  2,  3. 

12  Ibid.,  VI,  sec.  3,  Amendments  I-II. 

13  Ibid.,  Amendments  III-V. 

^*  Ibid.,  Ill,  sec.  2,  cl.  3;  sec.  3;  Amendments  V-VIII. 


78       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

45.  Effect  upon  Pozvcr  to  Meet  International  Responsibilities. 

Such  guarantees  have  not  interfered  with  the  meeting  of 
responsibihties  imposed  by  international  law  or  treaty. ^^  They  are 
not  applicable  exterritorially,  thus  do  not  interfere  with  the  carrying 
out  of  treaties  giving  American  consular  courts  jurisdiction  over 
crimes  committed  by  American  citizens  abroad.  It  was  held  that 
such  a  consular  court  in  Japan  was  not  obliged  to  accord  jury  trial 
in  criminal  cases. ^'^  Nor  have  constitutional  guarantees  interfered 
with  the  execution  of  treaties  for  the  internment  of  belligerent 
troops  entering  the  territory  when  the  United  States  is  neutral, 
the  return  of  seamen  deserting  from  foreign  vessels,  and  the  extra- 
dition of  criminals  found  within  the  United  States.  Compliance 
with  the  terms  of  the  treaty  has  been  held  to  accord  the  person 
subject  to  internment,^'  return^®  or  extradition^"  the  "  due  process 
of  law "  required  by  the  Vth  Amendment.  It  is,  however,  doubt- 
ful whether  an  extradition  authorized  by  the  President  in  the 
absence  of  treaty  would  be  legal  though  one  Arguelles  was  thus 
extradited  to  Spain  under  authority  of  President  Lincoln  in  1864.^° 

Doubt  has  been  expressed  as  to  the  power  of  the  United  States 
to  execute  treaties  requiring  the  punishment  of  persons  for  certain 
acts,  such  as  the  acceptance  of  letters  of  marque,  therein  described 


15  Most  Constitutional  Limitations  cannot  affect  the  power  to  execute 
treaties,  because  they  apply  to  the  treaty-making  power  as  well  as  other 
organs  of  government.  Consequently  if  an  apparent  treaty  proved  inex- 
ecutable  by  virtue  of  a  constitutional  limitation,  it  would  really  be  no  treaty 
at  all,  but'  Jiltra  vires  and  void  from  the  start.  See  Infra,  sec.  46.  As  we 
have  noticed,  however,  the  United  States  would  be  bound  by  such  an 
obligation  because  the  foreign  government  cannot  be  presumed  to  know 
of  obscure  constitutional  limitations.  Supra,  sec.  31.  See  also  Willoughby, 
op.  cit.,  p.  515. 

16 /n  re  Ross,  140  U.  S.  453   (1890). 

1''  Ex  Parte  Toscano,  208  Fed.  Rept.  938. 

18  Tucker  v.  Alexandroff,   183  U.  S.  424   (1902);   Moore,  Digest,  6,  423, 

i^U.  S.  V.  Jonathan  Robbins,  Bees  Adm.,  266;  The  British  Prisoners, 
I  Wood  and  Min.  66;  Neeley  v.  Ilenkel,  180  U.  S.  109  (1901),  Moore,  Digest, 
6:  267,  270. 

20  Dicta  in  Terlinden  z:  Ames,  184  U.  S.  271,  289  (1902),  and  Tucker  v. 
Alexandroff,  183  U.  S.  424,  431  (1902);  Moore,  Digest,  6:  247-253;  Wil- 
loughby,  op.  cit.,  p.  479. 


PRIVATE  RIGHTS  AND  STATES'  RIGHTS.  79 

as  crimes. ^^  There  has  also  been  doubt  of  its  ability  to  punish  those 
violating  rights  guaranteed  by  treaty  or  international  law  to 
resident  aliens. ^^  In  these  cases,  however,  the  difficulty  has  arisen 
from  the  strictly  statutory  character  of  the  jurisdiction  of  federal 
courts  and  not  from  constitutional  guarantees.  Congress  is  compe- 
tent^^ and  in  fact  has  provided  for  the  punishment  of  offenses  of 
the  first  though  not  of  the  second  character  in  federal  courts.-* 

Constitutional  guarantees  do  not  seem  to  interfere  with  a  due 
observance  of  the  immunities  guaranteed  to  foreign  sovereigns, 
diplomats,  naval  and  military  forces,  consuls,  etc.,  by  international 
law  or  treaty.  Thus  foreign  diplomatic  officers  have  been  con- 
sidered immune  from  compulsory  attendance  as  witnesses. ^^  In 
a  case  where  the  accused  claimed  a  constitutional  right  to  have  a 
French  consul  subpoenaed  as  a  witness  in  a  criminal  trial,  the 
California  court  upheld  the  consul's  claim  of  treaty  immunity  on 
the  ground  that  the  guarantee  of  the  Vlth  Amendment  of  the  Con- 
stitution gave  the  accused  only  the  same  rights  as  the  prosecution 
and  not  an  absolute  right  "  to  have  compulsory  process  for  obtain- 
ing witnesses  in  his  favor."  ^^  It  also  appears  that  the  prohibition 
amendment  does  not  interfere  with  the  exemption  from  inspection 
enjoyed  by  the  baggage  of  diplomatic  officers.^^ 


21  See  Marcy,  Sec.  of  State,  to  Mr.  Aspuria,  Nov.  15,  1854,  Moore,  Digest, 
2:  978;  5:  169;  Livingston,  J.,  in  the  Bello  Corrunes,  6  Wheat.  152,  and  dis- 
cussion by  Wright,  Am.  Jl.  Int.  Latv,  12:  79.  The  objection  in  these  cases, 
however,  Avas  based  on  a  supposed  encroachment  by  the  treaty  upon  the 
power   of    Congress    to   "  punish  .  .  .  offenses   against  the   law   of  nations." 

22  Objection  has  been  made  in  Congress  on  the  score  of  encroachment 
upon  state  reserved  powers.    See  Taft,  U.  S.  and  Peace,  N.  Y.,  1914,  p.  74. 

23  Baldwin  v.  Franks,  120  U.  S.  678. 

24  U.  S.  Rev.  Stat.,  sees.  5373-5374;  Criminal  Code  of  1910,  sees.  304-305; 
infra,  chap.  XII. 

25  See  case  of  the  Dutch  minister  Dubois,  1856,  who  refused  to  appear 
in  a  criminal  trial,  and  case  of  the  Venezuelan  minister,  Comancho,  who  with 
consent  of  his  government  waived  his  privilege  and  appeared  as  a  witness 
in  the  Guiteau  trial  for  murder  of  President  Garfield.     Moore,  Digest,  4: 

643-^45. 

26 /«  re  Dillon,  Sawyer  561,  Fed.  Case  No.  3914  (1854);  Moore,  Digest, 

5:  78. 

2^^  The  papers  of  October  22,  1920,  reported  a  controversy  on  this  sub- 
ject between  the  State  and  Treasury  departments  at  Washington.  See  Hyde, 
International  Law,  1922,  i :  759. 


80       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

Finally,  constitutional  guarantees  have  not  impaired  the  gov- 
ernment's ability  to  follow  the  custom  of  international  law  whereby 
the  succeeding  government  continues  the  existing  system  of  civil 
and  criminal  law  in  newly  acquired  territory.  In  the  insular  cases 
the  Supreme  Court  held  that  constitutional  guarantees  did  not  apply 
to  unincorporated  territory  ex  propria  vigore  and  hence  the  pre- 
existing system  of  law  in  the  Philippines,  Porto  Rico,  etc.,  although 
not  providing  for  jury  trial  and  other  methods  guaranteed  by  the 
Constitution,  might  be  continued.^®  The  court,  however,  suggested 
that  certain  "  natural  rights  "  among  these  guarantees,  such  as  that 
requiring  "  due  process  of  law,"  might  apply  even  in  these  ter- 
ritories.2^  Clearly  the  prohibition  of  slavery  stated  in  amendment 
XIII  to  extend  to  "any  place  subject  to  the  jurisdiction"  of  the 
United  States  would  so  apply.  However,  there  is  no  international 
custom  favoring  the  continuance  of  institutions  disapproved  by  the 
usual  standards  of  justice  and  morality.^" 

46.  Effect  upon  Power  to  Make  International  Agreements. 

The  power  to  make  international  agreements,  likewise,  seems 
almost  unaffected  by  constitutional  guarantees  of  private  right. 
Many  of  these  guarantees  apply  to  all  organs  of  the  government, 
and  hence  in  theory  limit  the  treaty-making  power,  but  a  treaty 
has  never  been  held  void  in  consequence.^^  The  courts  have 
shown  an  inclination  to  reconcile  such  guarantees  to  treaty 
provisions  where  a  conflict  has  been  alleged.  The  various  cases 
we  have  considered  in  which  the  power  of  the  government  to 
meet  responsibilities  founded  on  treaty  has  been  sustained  likewise 
indicates  the  competence  of  the  treaty  power.  According  to  Amer- 
ican constitutional  theory  and  the  terms  of  the  "  necessary  and 
proper  clause  "  the  national  government  is  competent  to  carry  into 
efifect  all  of  its  constitutional  powers. ^^     Hence  if  the  courts  had 


28  Hawaii  v.  Mankichi,  190  U.  S.  197 ;  Dorr  v.  U.  S.,  195  U.  S.  138. 

-8  Dicta  of  Brown,  J.,  in  Downes  v.  Bidwell,  182  U.  S.  244,  282;  Dorr  v. 
U.  S.,   195  U.  S.   138. 

3'^  As  to  the  attitude  of  international  law  on  slavery  see  Story,  J.,  in 
U.  S.  z'.  La  Jcune  Eugenie,  2  Mason  409  (1822). 

31  Willoughby,  op.  cit.,  p.  493 ;  Corwin,  National  Supremacy,  p.  5 ;  An- 
derson, Aiti.  II.  Inf.  Law,  1 :  647;  Wright,  ibid.,  13:  248,  infra,  sec.  173. 

S2  Marshall,  C.  J.,  in  McCulloch  v.  Md.,  4  Wheat.  316. 


PRIVATE  RIGHTS  AND  STATES'  RIGHTS.  81 

held  the  execution  of  treaties  for  extradition,  internment,  or  the 
return  of  deserting  seamen  to  be  in  violation  of  constitutional 
guarantees,  they  would  in  reality  have  been  holding  the  treaty  itself 
void  as  beyond  the  competence  of  the  treaty  power.^^  This  issue 
was  definitely  raised  in  the  case  of  the  French  consul  referred  to. 
In  this  case  as  we  have  seen  the  California  court  upheld  the 
consul's  claim  to  immunity  by  an  interpretation  reconciling  the 
treaty  clause  and  the  constitutional  guarantee  in  question. ^^'^  How- 
ever, in  a  diplomatic  controversy  resulting  from  a  French  protest 
against  the  original  arrest  of  the  consul  for  refusal  to  obey  the 
subpoena.  Secretary  of  State  Marcy  took  a  less  favorable  view  of 
the  treaty :  ^* 

"  The  Constitution  is  to  prevail  over  a  treaty  where  the  provisions  of 
the  one  come  in  conflict  with  the  other.  It  would  be  difficult  to  find  a 
reputable  lawyer  in  this  country  who  would  not  yield  a  ready  assent  to  this 
proposition.  Mr.  Dillon's  counsel  admitted  it  in  his  argument  for  the  con- 
sul's privilege  before  the  court  in  California.  The  sixth  amendment  to  the 
United  States  Constitution  gives,  in  general  and  comprehensive  language, 
the  right  to  a  defendant  in  criminal  prosecutions  to  have  compulsory  process 
to  procure  the  attendance  of  witnesses  in  his  favor.  Neither  Congress  nor 
the  treaty-making  power  are  competent  to  put  any  restriction  on  this  con- 
stitutional provision.  ...  As  the  law  of  evidence  stood  when  the  Constitu- 
tion went  into  effect,  ambassadors  and  ministers  could  not  be  served  with 
compulsory  process  to  appear  as  witnesses,  and  the  clause  in  the  Constitu- 
tion referred  to  did  not  give  the  defendant  in  criminal  prosecutions  the 
right  to  compel  their  attendance  in  court.  But  what  was  the  case  in  this 
respect  as  to  the  consuls?  They  had  not  the  diplomatic  privileges  of  am- 
bassadors and  ministers.  After  the  adoption  of  the  Constitution  the  de- 
fendant in  a  criminal  prosecution  had  the  right  to  compulsory  process  to 
bring  into  court  as  a  witness  in  his  behalf  any  foreign  consul  whatsoever. 
If  he  then  had  it,  and  has  it  not  now,  when  and  how  has  this  constitutional 
right  been  taken  from  him?  Congress  could  not  take  it  away,  neither  could 
the  treaty-making  power,  for  it  is  not  within  the  competence  of  either  to 
modify  or  restrict  the  operation  of  any  provision  of  the  Constitution  of  the 
United  States." 

Though  with  his  interpretation  of  the  Vlth  Amendment,  Secretary 
Marcy  was  doubtless  correct  from  a  constitutional  point  of  view,®^ 

'3  Supra,  note  15. 

33a  Supra,  note  26.  This  interpretation  is  supported  by  J.  B.  Moore,  Proc. 
Am.  Phil.  Soc,  Minutes,  60:  xv;  Digest,  5:  168. 

3*  Moore,  Digest,  5  :  167. 

35  To  the  same  effect,  see  Mr.  Marcy  to  Mr.  Aspuria,  Nov.  15,  1854;  Mr. 
Blaine,  Sec.  of  State,  to  Mr.  Chen  Lan  Pin,  March  25,  1881 ;  Mr.  Cass  to 


82       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

yet  in  the  international  discussion  he  found  it  necessary  to  acquiesce 
in  the  French  view  and  make  amends  for  the  arrest.^''  Since 
France  could  not  be  presumed  to  know  of  the  constitutional  limitation 
when  the  treaty  was  made  she  was  entitled  to  hold  the  United 
States  bound.^^  However,  the  state  department  has  adhered  to 
Secretary  Marcy's  position  and  instructed  negotiators  to  exclude 
such  provisions  from  future  treaties.^® 

Finally  it  has  been  held  that  the  treaty  power  violates  no  con- 
stitutional guarantee  when  it  refuses  to  press  the  claims  of  Amer- 
ican citizens  against  foreign  governments  or  settles  them  unjustly 
by  compromise.^*^  Conventions  of  the  latter  efifect  cannot  be  said 
to  deprive  an  individual  of  a  guaranteed  right,  because  the  con- 
stitution can  guarantee  no  more  than  the  government  can  obtain.'*" 
Where  valid  private  claims  are  bartered  for  national  advantage,  as 
were  the  French  Spoliation  claims  in  1801,  a  moral  duty  of  the 
government  to  compensate  undoubtedly  exists  and  was  acted  on 
in  this  case  after  the  lapse  of  a  century .^^  The  constitutionality  of 
the  treaty,  however,  was  not  questioned. 

47.  Effect  upon  Power  to  Make  Decisions  on  National  Policy. 

Although    important    decisions    on    foreign    policy    such   as    the 


Lord  Napier,  Feb.  7,  1859;  Moore,  Digest,  5:  169.  177;  Cherokee  Tobacco 
Case,  II  Wall.  616  (1870)  ;  Geofroy  v.  Riggs,  133  U.  S.  258  (1890)  ;  Corwin, 
National  Supremacy,  p.  5;  Crandall,  op.  cit.,  p.  266;  VonHolst,  Constitutional 
Law  of  U.  S.,  Chicago,  1887,  P-  202. 

36  Moore,  Digest,  5:  80. 

^'^  Supra,  sec.  31. 

38  Mr.  Fish,  Sec.  of  State,  to  Mr.  Bassett,  Oct.  18,  1872,  Moore,  Digest, 
5 :  81.  This  provision  is  omitted  in  consular  treaties  with  Greece  and 
Spain,  1902,  Malloy,  Treaties,  pp.  855,  1701 ;  Corwin,  National  Supremacy,  p. 
15;  Wright,  Am.  Jl.  Int.  Law,  13:  260. 

39  Comegj's  V.  Vasse,  i  Pet'.  193  (1828).  "In  as  much  as  the  govern- 
ment is  under  no  legal  obligation  to  any  citizen  to  prosecute  his  claim  against 
a  foreign  country,  but  is  guided  solely  by  the  public  interest,  considerations 
of  public  policy  and  upright  dealing  between  states  may  warrant  the  aban- 
donment of  a  claim."     Borchard,  op.  cit.,  p.  367. 

40  Corwin,  National  Supremacy,  p.  16,  and  Borchard,  op.  cit.,  p.  366  et  seq. 

41  Gray  v.  U.  S.,  21  Ct.  CI.  340,  and  Gushing  v.  U.  S.,  22  Ct.  CI.  i. 
Meade's  claim,  however,  though  generally  admitted  to  have  been  unjustly 
settled  by  the  Spanish  treaty  of  1819,  has  never  been  liquidated  by  the 
United  States.     See  Borchard,  op.  cit.,  pp.  277,  .380, 


PRIVATE  RIGHTS  AND  STATES'  RIGHTS.  83 

recognition  of  foreign  states,  governments  and  belligerency,  the 
annexation  of  territory  and  the  declaration  of  war  and  intervention 
may  have  important  effects  upon  the  life,  liberty  or  property  of 
individuals,  such  acts  are  considered  "  political  questions "  not 
reviewable  by  the  courts  and  are  not  affected  by  constitutional 
guarantees.*^  The  court  refused  to  enjoin  the  Secretary  of  the 
Treasury  from  disbursing  funds  for  construction  of  the  Panama 
Canal  on  suit  of  one  Wilson,  a  tax-payer,  on  the  ground  that  Panama 
was  not  properly  a  state  and  the  United  States  had  no  authority. 
The  recognition  of  Panama  by  the  President  and  acceptance  of  his 
act  by  Congress  were  held  conclusive  by  the  court. '*^ 

"  For  the  courts  to  interfere,"  said  Justice  Brewer,  "  and  at  the  instance 
of  a  citizen,  who  does  not  disclose  the  amount  of  his  interest,  stay  the 
work  of  construction  by  stopping  the  payment  of  money  from  the  Treasury 
of  the  United  States  therefore,  would  be  an  exercise  of  judicial  power  which, 
to  say  the  least,  is  novel  and  extraordinary.  ...  In  the  case  at  bar  it  is 
clear  not  only  that  the  plaintiff  is  not  entitled  to  an  injunction,  but  also 
that  he  presents  no  ground  for  any  relief." 

In  the  carrying  out  of  foreign  policies  and  decisions  in  peace 
and  war  the  national  government  has  been  very  little  impeded  by 
constitutional  guarantees.  It  may  exclude  or  expel  aliens  without 
judicial  hearing,  even  when  they  allege  citizenship,  the  courts 
holding  that  in  such  cases  administrative  hearing  is  "  due  process 
of   law."  **     It   may   annex  territory   and   subject   it  to  military*^ 


*2  Williams  v.  Suffolk  Ins.  Co.,  13  Pet.  415;  The  Divina  Pastora,  4 
Wheat.  52;  Jones  z:  U.  S.,  137  U.  S.  202;  The  Prize  Cases,  2  Black  635; 
Willoughby,  op.  cit.,  pp.  999-1008. 

43  Wilson  V.  Shaw,  204  U.  S.  24  (1907). 

4*U.  S.  V.  Ju  Toy,  198  U.  S.  253  (1905).  Holmes,  J.,  also  suggested 
that  the  constitutional  guarantee  might  not  apply  to  an  immigrant  because 
"although  physically  within  our  boundaries  (he)  is  to  be  regarded  as  if  he 
had  been  stopped  at  the  limit  of  our  jurisdiction  and  kept  there  while  his 
right  to  enter  was  under  debate."  On  power  to  expel  see  Fong  Yue  Ting  v. 
U.  S.,  149  U.  S.  698  (1893).  The  immigration  act  of  Feb.  5,  1917,  art.  19,  pro- 
vides for  return  of  immigrants  illegally  entering  within  a  period  of  5  years, 
on  warrant  of  the  Secretary  of  Labor,  and  the  act  of  Oct.  16,  1918,  provides 
for  the  expulsion  of  any  alien  within  enumerated  classes,  on  warrant'  of  the 
Secretary  of  Labor.  Rule  19  of  May  i,  1917,  gives  the  procedure  of  en- 
forcement. See  Dept.  of  Labor,  Bureau  of  Immigration,  ed.  of  Immigra- 
tion Laws,  1919,  and  compiled  statutes,  sees.  4289  1/4  jj.  4289  1/4  b(2). 
For  Chinese  exclusion  and  deportation  provisions  see  acts.  May  6,  1882,  sees. 


84       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

or  civil  government**'  untrammeled  by  constitutional  guarantees. 
The  constitutional  guarantees  do  not  extend  to  annexed  territory 
until  it  has  been  incorporated  by  act  of  Congress.*^ 

The  government  may  give  its  consuls,  diplomatic  and  naval 
officers  authority  over  American  citizens  abroad,  even  to  the  extent 
of  criminal  convictions  without  jury  or  other  constitutional  re- 
quirements.'*^ By  a  recognized  custom  at  the  time  the  Xlllth 
Amendment  was  adopted,  seamen  may  be  compelled  to  fulfill  their 
contracts  against  their  will  and  by  force  without  violation  of  the 
prohibition  against  slavery  and  involuntary  servitude.** 

Though  the  Supreme  Court  has  said,^°  "  The  war  power  of  the 
United  States,  like  its  other  powers  ...  is  subject  to  applicable 
constitutional  limitations,"  practice  indicates  that  few  such  limita- 
tions are  applicable.^^  Military  discipline  may  be  enforced  within 
the  army  and  navy  by  courts  martial  exempt  from  constitutional 
restrictions  and   subject   only   to   the   articles   of   war  enacted  by 


I,  12  (22  Stat.  58,  61),  as  amended  July  5,  1884  (23  staf.  115,  117),  Sept.  13, 
1888,  sec.  13  (28  Stat.  1210).  For  finality  of  decisions  of  immigration  and 
customs  officials  see  act,  Aug.  18,  1894,  sec.  i  (28  stat.  390).  See  Comp. 
Statutes,  sec.  4290  et  scq.;  J.  P.  Hall,  Const.  Law,  pp.  124,  325;  Willoughby, 
op.  cit.,  pp.  1286-1293. 

45  Neeley  v.  Henkel,  180  U.  S.   109   (1901). 

46  Dorr  z'.  U.  S.,  195  U.  S.  138. 

47  Ibid. 

^^  In  re  Ross,  140  U.  S.  453    (1890). 

43  Robertson  v.  Baldwin,  165  U.  S.  275  (1897).  This  rule  was  altered  by 
the  La  Follette  Seaman's  act  of  1915,  sec.  16,  38  Stat.  1184,  Comp.  Stat.,  sec. 
8382a. 

^°  Brandeis,  J.,  in  Hamilton  v.  Ky.  Distilleries  and  Warehouse  Co.,  251 
U.  S.  146,  156.     See  also  Ruppert  v.  Caflfey,  251  U.  S.  264. 

51  "  In  my  judgment,  the  power  exists  without  any  restrictions  whatso- 
ever, save  those  which  are  imposed  by  such  express  prohibitions  of  the 
Constitution,  and  such  fundamental  restraints  upon  governmental  action, 
as  are  obviously  and  clearly  intended  to  apply  at  all  times  and  under  all 
conditions.  There  is,  in  this  field  of  governmental  activity  therefore,  little, 
if  any  occasion  to  employ  those  niceties  of  logical  analysis  which  have  crys- 
tallized into  canons  of  statutory  and  constitutional  construction,  the  appli- 
cation of  which  tends  to  elucidate  the  meaning  of  language  otherwise  ob- 
scure." Sutherland,  Constitutional  Power  and  World  Affairs,  N.  Y.,  1919,  p. 
94.  Senator  Sutherland's  language  doubtless  elucidates  the  obscurities  con- 
nected with  the  limitations  of  the  war  power. 


PRIVATE  RIGHTS  AND  STATES'  RIGHTS.  86 

Congress. ^^  Armies  may  be  raised  by  draft  without  violation  of 
constitutional  guarantees,^^  and  by  express  exception  of  the  Vth 
Amendment  persons  in  the  service  may  be  held  to  answer  for 
infamous  crimes  without  presentment  or  indictment  of  grand  jury. 
Foreign  territory,  or  even  domestic  territory  in  rebellion  may  be 
occupied  and  governed  without  observance  of  the  guarantees.'^* 
Within  any  territory  of  the  United  States  the  privilege  of  the  writ 
of  habeas  corpus  may  be  suspended  by  Congress  when  in  case  of 
rebellion  or  invasion  the  public  safety  may  demand  it.  Though 
such  a  suspension  of  the  writ  does  not  mean  a  suspension  of  the 
other  guarantees  and  a  rule  of  martial  law  except  in  so  far  as 
"  necessity,"  due  to  public  disturbance  and  an  actual  closure  of  the 
courts,  may  demand,  yet  the  practice  of  the  Civil  War  indicates  that 
an  actual  rule  of  martial  law  may  be  established  in  territory  not  the 
scene  of  immediate  violence.®^  In  pursuance  of  war.  Congress 
may  provide  for  the  confiscation  of  property  in  enemy  territory 
(even  though  American  territory  in  rebellion)  ^^  or  property 
belonging  to  enemy  persons  wherever  found^^  without  following 
the  guarantees  of  the  Vth  and  Vlth  Amendments.  Such  confisca- 
tions are  authorized  under  the  power  of  Congress  to  make  rules 
concerning  captures  and  not  under  its  power  of  criminal  legislation, 
hence  the  guarantees  for  criminal  trial  do  not  apply.^^  Under 
military  necessity  executive  authority  alone  will  justify  the  confisca- 
tion of  property.^^  Congress  may  also  provide  for  the  internment 
and  expulsion  of  alien  enemies  by  administrative  process.^" 


52  Dynes  v.  Hoover,  26  How.  65. 

53  Selective  Draft  Cases,  245  U.  S.  366. 

54  Neeley  v.   Henkel,    180  U.   S.    109    (1901),  Ford  v.   Surget,  97  U.   S. 

594- 

55£.r  parle  Milligan,  4  Wall.  2,  and  dissent  by  Chase,  C.  J.,  which 
Winthrop  (Military  Law,  2:  38)  regards  as  the  "sounder  and  more  reason- 
able "  view. 

58  Miller  V.  U.  S.,   11  Wall.  268. 

57  Brown  v.  U.  S.,  8  Cranch  no.  See  Trading  with  the  Enemy  Act, 
Oct.  6,  1917.  Property  of  loyal  citizens  may  be  taken  under  necessity  but 
must  be  paid  for  as  required  by  the  Vth  Amendment,  U.  S.  v.  Russell,  13 
Wall.  623;   Willoughby,  op.  cit.,  p.  1243. 

58  Miller  V.  U.  S.,  11  Wall.  268. 

59  Mitchell  V.  Harmony,  13  How.  115.  It  has  been  held  that  the  rights 
of  the  President  as  commander-in-chief,  though  not  limited  by  the  Constitu- 


86       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

We  may  conclude  that  constitutional  guarantees  of  individual 
rights  restrict  the  foreign  relations  power  very  little  whether  acting 
to  meet  international  responsibilities,  to  make  international  agree- 
ments or  to  make  and  carry  out  national  decisions  and  policies. 

B.  States'  Rights. 
48.  Nature  of  ProJiihition. 

Restrictions  upon  the  exercise  of  power  by  national  organs 
may  be  implied  from  the  guarantee  of  certain  rights  to  the  states. 
Territorial  integrity,"^  a  republican  form  of  government®"  and  the 
independence  of  their  governmental  organs  from  taxation  or  other 
burdening®^  appear  to  be  genuine  "  states'  rights "  and  must  be 
distinguished  from  the  so-called  "  reserved  powers  "  of  the  states. 
The  former  constitute  definite  limitations  upon  the  exercise  of 
national  power,  the  latter  if  they  restrict  the  exercise  of  national 
powers  at  all,  do  so  simply  by  virtue  of  constitutional  understand- 
ings. 


tion,  are  limited  by  the  international  law  of  war  and  consequently  confisca- 
tion of  property  beyond  those  allowed  by  the  law  of  war  can  only  be 
justified  by  act  of  Congress.  Brown  v.  U.  S.,  8  Cranch  no,  thus  held  that 
enemy  property  on  land  was  not  subject  to  confiscation  except  by  express  act 
of  Congress.  See  also  Lieber's  Instructions  for  the  Government  of  the 
Armies  in  the  Field,  Gen.  Order,  100,  April  24,  1863,  arts.  4,  11;  and 
Sutherland,  op.  cit.,  pp.  75,  yj.  Willoughby  thinks  the  President  may  even 
go  beyond  the  law  of  war  (op.  cit.,  1212)  and,  regarding  the  Emancipation 
Proclamation  of  Jan.  i,  1863,  as  a  confiscation  of  enemy  property  on  land. 
President  Lincoln  probably  did  so  by  that  proclamation.  For  criticism  see 
Burgess,  The  Civil  War  and  the  Constitution,  2:  117;  Rhodes,  History 
of  U.  S.,  4:  70.     See  also  infra,  sec.  218. 

^°  See  Alien  Enemy  Act,  July  6,  1798  (i  stat.  577),  amended  July  6, 
1812  (i  stat.  781,  rev.  stat.,  sees.  4067,  4068),  and  April  16,  1918,  making  it 
applicable  to  women,  which  authorizes  internment  and  expulsion.  The 
President  issued  proclamations  under  them  April  6,  Nov.  16,  Dec.  11,  1917, 
and  April  19,  1918.  See  Comp.  Stat.,  sees.  7615-18.  See  also  Brown  v.  U.  S., 
8  Cranch   no. 

^1  Constitution,  IV,  sec.  3,  cl.  i ;  sec.  4. 

62  I  hid.,  IV,  sec.  4. 

63  Collector  v.  Day,  11  Wall.  113;  Willoughby,  op.  cit.,  pp.  110-114; 
Willoughby.  The  American  Constitutional  System,  pp.  123,  129.  For  ex- 
press prohibitions  upon  the  national  government  in  behalf  of  the  states, 
see  supra,  sec.  44. 


PRIVATE  RIGHTS  AND  STATES'  RIGHTS.  87 

49.  Effect  upon  Power  to  Meet  International  Responsibilities. 

The  power  to  meet  international  responsibilities  does  not  seem 
to  be  limited  by  any  states'  rights.  The  power  to  define  and  punish 
offenses  against  the  law  of  nations  and  the  necessary  and  proper 
clause  of  the  Constitution*^*  confer  upon  Congress  ample  power 
to  provide  for  carrying  out  all  treaties  and  all  responsibilities  under 
international  law.  Legislation  of  Congress  punishing  offenses 
against  neutrality,  offenses  against  foreign  diplomatic  officers,  and 
the  counterfeiting  of  foreign  securities  have  been  held  to  violate 
no  guaranteed  states'  rights*'^  and  many  acts  for  the  carrying  out 
of  treaties  have  been  sustained.''®  Of  this  character  are  acts  pro- 
viding for  extradition  and  for  the  return  of  deserting  seamen. 
The  conclusion  of  treaties  may  unquestionably  extend  the  power  of 
Congress  to  provide  for  the  exercise  of  police  power  within  the 
states.  Thus  although  the  court  held  unconstitutional  an  act  of 
1907  rendering  persons  criminally  lialile  for  harljoring  immigrant 
women  as  prostitutes  within  a  period  of  three  years  of  landing,  it 
indicated  that  if  the  law  had  been  in  pursuance  of  a  treaty  it  would 
have  been  valid. ''^  The  Mann  White  Slave  Act  of  1910®*  actually 
includes  provisions  in  pursuance  of  the  International  White  Slave 
Convention  of  1904.  So  also  an  act  for  the  protection  of  migratory; 
birds  was  held  unconstitutional^®  but  the  court  has  sustained  a 
similar  act  passed  in  pursuance  of  a  treaty  with  Great  Britain.''" 

"  The  treaty  in  question,"  says  Mr.  Justice  Holmes,  "  does  not  contra- 
vene any  prohibitory  words  to  be  found  in  the  Constitution.  The  only 
question  is  whether  it  is  forbidden  by  some  invisible  radiation  from  the 
general  terms  of  the  loth  Amendment.  We  must  consider  what  this 
country  has  become  in  deciding  what  that  amendment  has  reserved.  .  .  . 
Valid  treaties,  of  course,  'are  as  binding  within  the  territorial  limits  of  the 
states  as  they  are  effective  throughout  the  dominion  of  the  United  States.' " 


6*  Constitution,  I,  sec.  8,  cl.  10,  18. 
^5  U.  S.  z'.  Arjona,  120  U.  S.  479. 
66  Mo.  V.  Holland,  252  U.  S.  416  (1920). 

•57  Ullman  v.  U.  S.,  213  U.  S.  138  (1909),  declaring  act  of  Feb.  20,  1907, 
sec.  3  (34  Stat.  898),  void. 

68  Act,  June  25,  19 10,  sec.  6,  36  stat.  825. 

69  U.  S.  V.  Shauves,  214  Fed.  154;  U.  S.  v.  McCullagh,  227  Fed.  288. 
■^"Mo.  V.  Holland,  252  U.  S.  416  (1920). 


88       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

Baldwin  v.  Franks,  120  U.  S.  678,  683.  No  doubt  the  great  body  of  private 
relations  usually  falls  within  the  control  of  the  state,  but  a  treaty  may  over- 
ride its  power.  We  do  not  have  to  invoke  the  later  developments  of  con- 
stitutional law  for  this  proposition;  it  was  recognized  as  early  as  Hopkirk  v. 
Bell,  3  Cranch  454,  with  regard  to  statutes  of  limitation,  and  even  earlier 
as  to  confiscation,  in  Ware  v.  Hylton,  3  Dall.  199.  It  was  assumed  by  Chief 
Justice  Marshall  with  regard  to  the  escheat  of  land  to  the  state  in  Chirac  v. 
Chirac,  2  Wheat.  259,  275;  Hauenstein  v.  Lynham,  100  U.  S.  483;  Geofroy  v. 
Riggs,  133  U.  S.  258;  Blythe  v.  Hinckley,  180  U.  S.  2,2>i,  340.  So,  as  to  a 
limited  jurisdiction  of  foreign  consuls  within  a  state.  Wildenhus  Case,  120 
U.  S.  I.  See  Re  Ross,  140  U.  S.  453.  Further  illustration  seems  unnecessary, 
and  it  only  remains  to  consider  the  application  of  established  rules  to  the 
present  case. 

"Here  a  national  interest  of  very  nearly  the  first  magnitude  is  involved. 
It  can  be  protected  only  by  national  action  in  concert  with  that  of  another 
power.  The  subject  matter  is  only  transitorily  within  the  state,  and  has  no 
permanent  habitat  therein.  But  for  the  treaty  and  the  statute,  there  soon 
might  be  no  birds  for  any  powers  to  deal  with.  We  see  nothing  in  the 
Constitution  that  compels  the  government  to  sit  by  while  a  food  supply  is 
cut  off  and  the  protectors  of  our  forests  and  of  our  crops  are  destroyed. 
It  is  not  sufficient  to  rely  upon  the  states.  The  reliance  is  vain,  and  were 
it  otherwise,  the  question  is  whether  the  United  States  is  forbidden  to  act. 
We  are  of  opinion  that  the  treaty  and  statute  must  be  upheld.  Gary  v. 
South  Dakota,  250  U.  S.  118." 

The  present  inability  of  federal  courts  to  prosecute  persons 
within  the  states  guilty  of  violating  the  rights  of  aliens  guaranteed 
by  international  law  or  treaty  is  not  due  to  a  limitation  upon  na- 
tional power  but  to  an  insufficiency  of  congressional  legislation.'^^ 

50.  Effect  upon  Power  to  Make  International  Agreements. 

The  national  guarantee  of  territorial  integrity  and  a  repub- 
lican form  of  government  to  the  states  limits  the  treaty  power. 
The  capacity  of  the  treaty  power  to  cede  state  territory  was  discussed 
in  Washington's  cabinet.  Secretary  of  State  Jefferson  maintained 
that  "  the  United  States  had  no  right  to  alienate  one  inch  of  the 
territory  of  any  state "  while  Secretary  of  the  Treasury  Hamilton 
took  the  opposite  view."     While  admission  of  the  supremacy  of 


'1  Willoughby,  Am.  Constitutional  System,  p.  108;  Pomeroy,  Const.  Law, 
9th  ed.,  p.  571;  Corwin,  National  Supremacy,  pp.  288-289;  Taft.  U.  S.  and 
Peace,  40  et  seq..  Gammons,  Am.  Jl.  Int.  Law,  11:  6;  Moore,  Digest,  6:  839 
et  seq. 

T2  Jefferson's  Anas,  March  11,  1792,  Wharton,  Digest,  2:  66. 


PRIVATE  RIGHTS  AND  STATES'  RIGHTS.  89 

treaties  granting  Indian  tribes  an  exclusive  right  in  reservations 
within  the  states'^^  seems  to  go  far  toward  admitting  the  right  of 
the  treaty  power  to  aHenate  state  territory,  an  actual  cession  was 
not  here  in  question.  In  the  only  case  of  foreign  cession  of  state 
territory  that  has  arisen,  the  adjustment  of  the  Maine  boundary  by 
the  Webster-Ashburton  treaty  of  1842,  the  political  expediency  if 
not  the  constitutional  necessity  of  obtaining  the  state's  consent 
was  admitted.  The  compensation  to  be  paid  Maine  and  Massa- 
chusettes  was  especially  referred  to  in  the  treaty.'^*  The  better 
opinion  seems  to  hold  that  state  consent  must  be  obtained,"  though 
in  case  of  necessity,  as  to  end  an  unfortunate  war,  a  treaty  cession 
without  such  consent  would  doubtless  stand. '^*' 

The  interpretation  of  the  guarantee  of  a  "  Republican  Form  of 
Government  "  was  held  by  the  courts  a  political  question  in  a  case 
recognizing  the  legitimacy  of  the  military  government  set  up  in 
Texas  after  the  Civil  War."  Doubtless  a  treaty  putting  a  state 
under  a  protectorate  or  otherwise  subverting  its  government  could 
be  equally  well  reconciled  with  the  guarantee.  Legally,  however, 
the  guarantee  unquestionably   restricts  the  treaty  power. 

The  "reserved  powers"  of  the  states,  however,  do  not  limit 
the  treaty-making  power.  Powers  often  claimed  to  be  "  reserved 
powers"  may  be  classified  as  (i)  the  power  to  regulate  exclusively 
state  land  and  natural  resources;  (2)  the  power  to  exercise  ex- 
clusive control  over  public  services  supported  by  state  taxation; 
(3)  the  power  to  exercise  police  control  over  classes  of  persons 
and  businesses  within  the  state  in  behalf  of  public  safety,  health, 
morals  and  economic  welfare.  Treaty  provisions  often  guarantee 
to  aliens  rights  of  entry,   residence  landholding,  inheritance,  etc., 

"Worcester  v.  Ga.,  6  Pet.  515  (1832). 

7*  Art.  V  of  treaty.  See  Moore,  5:  172-174,  supra,  sec.  31.  This  inci- 
dent is  discussed  in  Fort  Leavenworth  Railroad  Co.  v.  Lowe,  114  U.  S. 
525,  541,  quoting  Webster's  Works,  5:  99,  6:  27:^. 

■^5  Dicta  in  Lattimer  v.  Poteet,  14  Pet.  14  (1840);  Geofroy  v.  Riggs, 
133  U.  S.  267  (1890);  Insular  Cases,  182  U.  S.  316  (1901)  ;  Fort  Leaven- 
worth Railroad  Co.  v.  Lowe,  114  U.  S.  525,  541;  Moore,  Digest,  5:  171- 
175;  Butler,  The  Treaty  Making  Power,  1902,  i:  411-413,  2:  238,  287-294; 
Corwin,  National  Supremacy,  130-134;  Wright,  Am.  Jl.  Int.  Law,  13:  253. 

76  Supra,  sec.  32. 

77  Texas  v.  White,  7  Wall.  700.  / 


90       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

equal  to  that  of  citizens  or  subjects  of  the  most-favored  nation/* 
It  has  been  alleged  that  such  provisions  are  void  in  so  far  as  they 
conflict  with  the  exercise  by  the  States  of  these  "  reserved " 
powers.  The  issue  has  been  judicially  considered  in  reference  to 
state  statutes  discriminating  against  aliens,  or  aliens  of  a  partic- 
ular race  or  nationality  (i)  in  the  privilege  of  owning  land/® 
operating  mines,*"  and  taking  fish*^  and  game;^-  (2)  in  the  use 
of  public  schools^^  and  the  right  to  labor  on  public  works  ;^*  (3) 
and  in  the  freedom  of  immigration,*^''  labor, ®^  personal  habits, ^^  and 


■^8  Art.  XI  of  the  Treaty  of  1778  with  France  and  Art.  I  of  the  Treaty 
of  1894  with  Japan,  superseded  by  Art.  I  of  the  Treaty  of  191 1,  are  examples 
of  this  type  of  provision. 

■^■9  Fairfax  v.  Hunter,  7  Cr.  603;  Chirac  v.  Chirac,  2  Wheat.  259  (1817)  ; 
Society  for  the  Propagation  of  the  Gospel  v.  New  Haven,  8  Wheat.  464 
(1823)  ;  Carneal  v.  Banks,  10  Wheat.  259  (1825)  ;  California-Japanese  con- 
troversy, 1913,  Corwin,  0/'.  cit.,  p.  232.  Art.  VII  of  the  treaty  of  1853 
with  France  made  concessions  to  this  "  states'  right."  It  allowed  French- 
men to  possess  land  on  an  equality  with  citizens  "  in  all  the  states  of 
the  Union  where  existing  laws  permit  it,  so  long  and  to  the  same  extent  as 
the  said  laws  shall  remain  in  force."  As  to  the  other  states  "  the  President 
engages  to  recommend  to  them  the  passage  of  such  laws  as  may  be  neces- 
sary for  the  purpose  of  conferring  the  right." 

80  People  V.  Noglee,   i   Cal.  232   (1850). 

81  Griggs,  Att.  Gen.,  1898,  22  Op.  214. 

82  Patsone  v.  Pa.,  232  U.  S.  138,  145,  Mo.  v.  Holland,  252  U.  S.  416 
(1920). 

83  California-Japanese  school  children  controversy,  1906,  Corwin,  op.  cit., 
p.  217;  E.  Root,  Am.  Jl.  Int.  Law,  i:  273,  and  editorials,  ibid.,  i:  150,  449. 
Art.  IV  of  the  Treaty  of  1854  with  Great  Britain  indicates  that  the  United 
States  doubted  its  right  to  control  a  state  establislied  utility  without  state 
consent.  "  The  government  of  the  United  States  further  engages  to  urge 
upon  the  state  government  to  secure  to  the  subjects  of  Her  Britannic 
Majesty  the  use  of  the  several  State  Canals  on  terms  of  equality  with  the 
inhabitants  of  the  Ll^nited  States." 

8*  Baker  v.  Portland,  5  Sawyer  566  (1879);  Heim  v.  McCall,  239  U.  S. 
175  (1915).  Am.  Jl.  Int.  Law,  10:  162. 

8s  Elkinson  v.  Deliesseline,  Leg.  Doc.  Mass.  1845  (Senate),  No.  31,  p.  39 
(1823),  Thayer,  Cases  in  Constitutional  Law,  p.  1849,  Corwin,  op.  cit.,  p. 
125;  Wirt,  Att.  Gen.,  10:  661  (1824)  ;  Berrien,  Att.  Gen.,  20:  431  (1831)  ;  The 
Passenger  Cases,  7  How.  283  (1849)  ;  in  re  Ah  Fong,  3  Sawyer  144; 
Henderson  v.  N.  Y.,  92  U.  S.  259  (1875). 

8c  In  re  Tiburcio  Parrotf,  6  Sawyer  349  ( 1880)  ;  Truax  v.  Raich,  239 
U.  S.  ^3,  43  (1915),  Am.  Jl.  Int.  Law,  10:  158. 

87  PIo  Ah  Kow  V.  Nunan,  5  Sawyer  532    (1879). 


PRIVATE  RIGHTS  AND  STATES'  RIGHTS.  91 

conduct  of  business. ^^  In  a  few  cases  dicta  damaging  to  the  treaty- 
power  have  been  uttered ;  ^°  sometimes  the  treaty  has  been  sub- 
jected to  a  strained  interpretation  to  save  the  State's  power;""  but 
in  no  case  has  a  clear  treaty  provision  been  superseded  by  the  state 
law.  On  the  contrary,  state  statutes  of  this  character  have  fre- 
quently been  declared  void  when  conflicting  with  clear  treaty  pro- 
visions.*^^ With  respect  to  statutes  relating  to  the  control  of  natural 
resources  and  state-supported  services,  the  attitude  of  the  courts 
has  been  cautious,  with  a  decided  tendency  in  recent  cases  to  com- 
promise by  adopting  interpretations  of  the  treaty  favorable  to  the 
state  power."-  The  question,  however,  has  been  on  the  applicability 
of  the  treaty,  not  upon  its  validity. 

A  more  extreme  extension  of  the  "  reserved  powers  "  doctrine 
has  been  put  forward  in  the  claim  that  unlimited  discretion  in  the 
regulation  and  taxation  of  property  and  inheritances  is  a  state  power 
exempt  from  interference  by  the  treaty-making  power.  Treaties 
of  the  character  mentioned  have  sometimes  conflicted  with  the 
alleged  exclusive  right  of  the  state  to  regulate  the  ownership, 
transmission  and  inheritance  of  property  within  its  limits.^^  An 
historical  view  of  the  many  cases  bearing  upon  this  point  shows  that 
in  the  days  of  Marshall"*  and  since  the  Civil  War"''  the  Supreme 

88  Yick  Wo  V.  Hopkins,  ii8  U.  S.  356  (1886);  Compagnie  Francaise  v. 
State  Board  of  Health,  186  U.  S.  380  (1902).  Frequently  in  these  cases  the 
XIV  Amendment  as  well  as  treaties  have  been  in  opposition  to  the  exercise 
of  state  powers.     See  also  Rocca  v.  Thompson,  232  U.  S.  318. 

89  Taney,  C.  J.,  in  Holmes  v.  Jennison,  14  Pet.  540  (1840);  The  Pas- 
senger Cases,  7  How.  283,  465  (1849)  ;  Daniels,  J.,  in  The  License  Cases, 
5  How.  504,  613;  Grier,  J.,  in  The  Passenger  Cases,  7  How.  283  (1849). 

90  Compagnie  Francaise  v.  State  Board  of  Health,  186  U.  S.  380  (1902). 
^1  Chirac  z'.  Chirac,  2  Wheat.  259  (1817)  ;  Elkinson  v.  Deliesseline,  supra, 

note  42;  in  re  Tiburcio  Parrott,  6  Sawyer  349  (1880)  ;  Truax  v.  Raich,  239 
U.  S.  22,  43  (1915),  Am.  Jl.  Int.  Law,  10:  158. 

92Patsone  v.  Pa.,  232  U.  S.  138,  145;  Heim  v.  McCall,  239  U.  S.  175, 
193  (1915).  Am.  Jl.  Int.  Lazv,  10:  162.  But  see  Mo.  v.  Holland,  supra, 
sec.  49. 

93  Ware  v.  Hylton,  3  Dall.  199  (1796);  Hopkirk  v.  Bell,  3  Cranch  454; 
Prevost  V.  Greenaux,  10  How.  i  (1856)  ;  Fredricksen  v.  La.,  2^  How.  443 
(i860);  Hauenstein  v.  Lynham,  100  U.  S.  483  (1879);  Wynans  Petitioner, 
191    Mass.   276;    People   v.   Gerke,   5    Cal.  381    (1855). 

9*  Fairfax  v.  Hunter,  7  Cr.  603  (1813)  ;  Chirac  v.  Chirac,  3  Wheat.  259 
(1817). 


92       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

Court  has  uniformly  and  in  no  uncertain  voice  sustained  the  treaty 
power  as  against  these  alleged  states'  reserved  powers.  Only 
during  the  period  preceding  the  Civil  War  was  there  a  wavering, 
even  then  confined  to  dicta.®^ 

Statesmen  and  text  writers  with  few  exceptions  have  taken  a 
similar  attitude  in  support  of  a  broad  treaty  power.**^  We  may 
accept  the  view  of  a  California  judge  in  a  case  involving  the  state 
intestacy  laws.°^ 

"  One  of  the  arguments  at  the  bar  against  the  extent  of  this  power  of 
treaty  is,  that  it  permits  the  Federal  Government  to  control  the  internal 
policy  of  the  States,  and,  in  the  present  case,  to  alter  materially  the  statutes 

osRauenstein   v.    Lynham,    lOO   U.    S.    483    (1879);    Geofroy   v.   Riggs, 
133  U.  S.  258  (1890). 
^^  Supra,  note  89. 

8'^  For  supremacy  of  treaty  power  over  state  powers : 
Anderson,  C,  Am.  J  I.  Int.  Law,  i:  636; 
Burr,  Treaty  Making  Power  of  U.  S.,  1912; 
Butler,  The  Treaty  Making  Power  of  the  U.  S.,  1902; 
Calhoun,  Discourse,  Works,  ed.  1853,  i :  202 ;  Elliot's  Debates,  4 :  463 ; 
Corwin,  National  Supremacy,  1913; 

Crandall,  Treaties,  their  Making  and  Enforcement,   1916; 
Devlin,  Treaty  Power  under  the  Constitution  of  U.  S.,  San  Francisco, 

1908; 
Elliott,  E.  C,  The  Treaty  Making  Power,  with  reference  to  the  Re- 
served Powers  of  the  States,  Case  and  Comment,  22:  77   (1913)  ; 
Hall,    J.    P.,    State    Interference    with    the    Enforcement    of    Treaties, 

Proc.  Acad.  Pol.  Sci.,  7:  24; 
Livingston,  Sec.  of  State,  Wharton,  2:  67; 
Moore,  J.  B.,  Pol.  Sci.  Quar.,  32:  320; 
Pomeroy,    Introduction   to   the   Constitutional   Law   of  U.    S.,  9th   ed., 

1886,  sec.  674; 
Root,  Am.  Jl.  Int.  Law,  i:  273; 
Story,  Commentaries  on  the  Constitution ; 

Willoughby,  W.  W.,  Constitutional  Law  of  U.  S.,  2  vols.,  1910. 
Against  supremacy  of  treaty  power  over  state  powers : 

Hayden,    Am.   Hist.   Rev.,   22:    566    (takes   a   historical   view    showing 

that  the  political  check  has  sometimes  preserved  states'  rights  from 

adverse  treaties)  ; 
Jefferson,  Manual  of  Parliamentary  Practice,  p.  no; 
Mikell,   University  of  Pa.  Law  Rev.,  57,  435,  528; 
Tucker,  H.   S.,   Limitations  on   the  Treaty   Making  Power  under   the 

Constitution  of  U.  S.,  Boston,  1915; 
Tucker,  J.  R.,  Constitution  of  U.  S.,  2  vols.,  1899. 
»8  People  V.  Gerke,  5  Cal.  381   (1855). 


PRIVATE  RIGHTS  AND  STATES'  RIGHTS.  93 

of  distribution.  If  this  was  so  to  the  full  extent  claimed,  it  might  be  a 
sufficient  answer  to  say,  that  it  is  one  of  the  results  of  the  compact,  and, 
if  the  grant  be  considered  too  improvident  for  the  safety  of  the  States,  the 
evil  can  be  remedied  by  the  Constitution-making  power." 

Thus  any  respect  that  is  shown  by  the  treaty-making  power  to 
"  reserved  powers  "  of  the  states  is  merely  by  virtue  of  an  under- 
standing of  the  Constitution.  In  fact  such  respect  has  often  been 
shown  and  it  was  thus  to  safeguard  the  interests  of  the  states 
that  the  Senate  was  made  such  an  important  element  in  treaty- 
making."*  This  function  the  Senate  has  recognized,  and,  especially 
in  the  period  before  the  Civil  War,  has  frequently  exercised  a  veto 
upon  treaties  thought  to  violate  states'  rights,  or  redrafted  them 
so  as  to  permit  of  state  consent  before  the  treaty  became  effective 
within  its  territory. ^°°  The  practice  of  the  Senate,  the  opinions 
of  statesmen  and  dicta  of  the  courts  indicate  that,  except  for  the 
most  cogent  reasons,  the  treaty  power  ought  to  exercise  its  powers 
in  such  way  as  not  to  interfere  with  the  control  by  the  states  of 
their  own  land,  natural  resources,  and  public  services  and  not  to 
interfere  unnecessarily  with  the  enforcement  by  the  state  of  its  own 
policy  with  reference  to  the  protection  of  public  safety,  health, 
morals  and  economic  welfare. 

51.  Effect  upon  Power  to  Make  Decisions  upon  National  Policy. 

States'  Rights  have  not  interfered  with  the  making  and  carrying 
out  of  national  decisions.  Such  decisions  as  the  declaration  of 
war,  recognition  of  foreign  states  and  governments,  annexation  of 
territory,  etc.,  being  of  external  application,  have  never  been  alleged 
to  conflict  with  states'  rights,  unless  the  protests  of  the  Hartford 
Convention   against   the   War   of    181 2   be   so   considered."^     The 


99  Ralston  Hayden,  The  States'  Rights  Doctrine  and  the  Treaty  Making 
Power,  Am.  Hist.  Rev.,  22:  56;  Corwin,  National  Supremacy,  141,  302.  The 
fathers  seem  to  have  considered  the  Senate  a  special  bulwark  of  states' 
rights,  Farrand,  op.  cxt.,  2:  393;  The  Federalist,  No.  64  (Jay),  Ford  ed., 
p.  432;  Elliot,  Debates,  4:  137. 

100  Hayden,  op.  cit..  Am.  Hist.  Rev.,  22:  56.  For  example  see  supra, 
note  79. 

101  See  proposed  amendment  to  the  Constitution  requiring  two-thirds  vote 
of  both  houses  to  declare  war,  MacDonald,  Select  Documents  in  American 
History,  N.  Y.,  1898,  p.  206. 


94       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

exercise  of  war  powers,  has  conflicted  with  alleged  states'  reserved 
powers.  Thus  the  drafting  of  armies  was  attacked  as  an  impair- 
ment of  the  states'  reserved  power  over  its  militia.^°-  Though  the 
contention  at  first  received  some  judicial  support  in  Civil  War 
cases/"^  it  was  thoroughly  demolished  during  the  World  War.^*^* 

Apparently  the  only  legal  limitation  upon  the  exercise  of 
powers  in  foreign  relations  imposed  by  states'  rights  is  that  upon 
the  power  to  cede  state  territory  by  treaty,  which  is  acknowl- 
edged to  evaporate  before  necessity. 


i°2  Constitution,  Art.  I,  sec.  8,  cl.  15,  16.  The  national  government  can 
call  forth  the  mihtia,  as  such,  only  "  to  execute  the  laws  of  the  Union,  sup- 
press insurrections  and  repel  invasions,"  which  does  not  permit  of  use  out- 
side the  territory  (Wickersham,  Att.  Gen.,  29  Op.  322),  but  under  present 
law  the  militia  are  not'  used  as  such  but  are  reenlisted  in  the  national  army 
when  called  out  for  national  service.  (Act  June  3,  1916,  39  stat.  200, 
211,  sees.  70,  71,  73,  III.)  The  power  to  raise  armies  (Constitution,  I,  sec.  8, 
cl.  12)  is  wholly  distinct  from  the  power  over  the  militia  and  is  not  limited 
by  the  state's  right  to  its  militia.  (Selective  Draft  Cases,  245  LI.  S.  366.) 
See  Wright,  Military  Administration,  Report  of  Efficiency  and  Economy 
Committee  of  Illinois,  191S,  p.  903. 

103  Kneedler  v.  Lane,  45  Pa.  238  (1863),  Thayer,  Cases  on  Constitutional 
Law,  p.  2316.  Lowrie,  J.,  supported  by  Justices  Woodward  and  Thompson, 
with  Justices  Strong  and  Read  in  dissent,  granted  a  preliminary  injunction 
on  November  9,  1863.  On  December  12,  1863,  Justice  Lowrie's  term  ex- 
pired. He  was  succeeded  by  Justice  Agnew,  who  sided  with  the  two  former 
dissenting  justices,  thus  making  Justice  Strong's  opinion  dissolving  the 
injunction  the  opinion  of  the  court. 

i°*  Selective  Draft  Cases,  245  U.  S.  366;  Sutherland,  op.  cit.,  p.  108. 


CHAPTER  VII. 

Limitations  upon  National  Powers:  The  Separation  of 

Powers. 
52.  Nature  of  the  Theory. 

The  doctrine  of  separation  of  powers  means  that  the  legislative, 
executive,  and  judicial  powers  of  government  ought  to  be  exercised 
by  separate  and  independent  departments. 

"  It  is  also  essential,"  says  the  Supreme  Court,  "  to  the  successful  work- 
ing of  the  system  that  the  persons  intrusted  with  power  in  any  one  of  these 
branches  shall  not  be  permitted  to  encroach  upon  the  powers  confided  to 
the  others,  but  that  each  shall  by  the  law  of  its  creation  be  limited  to  the 
exercise  of  the  powers  appropriate  to  its  own  department  and  no  others."  * 

The  doctrine  is  implied  by  three  clauses  of  the  Constitution: 

"  All  legislative  power  herein  granted  shall  be  vested  in  a  Congress  of 
the  United  States."     (Art.  I,  sec.  i.) 

"  The  executive  power  shall  be  vested  in  a  President  of  the  United 
States  of  America."     (Art.  II,  sec.  i.) 

"  The  judicial  power  of  the  United  States  shall  be  vested  in  one  Su- 
preme Court  and  in  such  inferior  courts  as  the  Congress  may  from  time 
to  time  ordain  and  establish."     (Art.  Ill,  sec.  i.) 

It  will  be  noticed  that  the  Congress  is  vested  merely  with  "all 
legislative  powers  herein  granted "  while  the  President  and  the 
courts  are  vested  respectively  with  "  the  executive  power "  and 
"the  judicial  power  of  the  United  States."  The  mere  fact 
that  a  power  is  legislative  in  character  does  not,  therefore,  indicate 
its  possession  by  Congress  unless  it  is  specifically  granted  to  that 
body  elsewhere  in  the  Constitution.  It  has  been  urged,  however, 
that  all  powers  by  nature  executive  belong  inherently  to  the  Pres- 


1  Kilbourn  v.  Thompson,  103  U.  S.  168.  On  impossibility  of  so  defining 
the  functions  of  the  departments  as  to  make  an  actually  complete  separation, 
see  Goodnow,  The  Principles  of  the  Administrative  Law  of  U.  S.,  N.  Y.,  1905, 
p.  26,  and  Willoughby,  op.  cit.,  p.  1262. 

2  Hamilton,  "  Pacificus "  Letter,  June  29,  1793,  and  Roosevelt,  Auto- 
biography, pp.  388-389,  quoted,  Corwin,  The  President's  Control  of  Foreign 
Relations,  pp.  11,  168.    See  also  infra,  sec.  92. 

95 


96       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

ident^  and  all  powers  by  nature  judicial  to  the  courts.^  Doubtless 
certain  inherent  executive  and  judicial  powers  and  privileges,  nec- 
essary for  the  functioning  of  the  organ,  and  for  the  preservation 
of  its  independence,  such  as  the  executive  power  to  remove  officials* 
and  the  judicial  power  to  punish  for  contempts,^  exist  aside  from 
express  delegation,  but  so  also  do  inherent  legislative  powers,  such 
as  the  power  to  subpoena  witnesses  necessary  to  give  information 
essential  to  intelligent  legislation.^  The  general  vesting  of  executive 
and  judicial  power  cannot,  therefore,  be  made  the  basis  of  powers 
other  than  essentially  inherent  power.  To  do  so  would  render 
the  subsequent  express  delegations  of  power  to  the  President  and 
the  courts  useless  verbiage.  Expressis  unius  exclusis  alteris 
applies  to  the  executive  and  judicial  powers  as  well  as  the  legis- 
lative.'^ 

Aside,  therefore,  from  its  assurance  of  certain  necessary  and 
inherent  powers  to  each  department,  the  theory  of  separation  of 
power  is  a  limitation  rather  than  a  source  of  power  for  each  de- 
partment.    We  may  express  the  doctrine  in  three  principles.® 

53.  Protection  of  Independence  of  Departments. 

Each  department  is  endowed  with  such  rights,  privileges  and 
inherent  pozvcrs  as  zvill  assure  its  independence  of  the  others.^ 
Thus  members  of  Congress  are  immune  from  arrest  during  the 
session,  each  house  is  given  exclusive  authority  to  judge  the  quali- 
fications of  its  own  members,  to  make  its  own  rules  of  procedure, 
to  discipline  and  expel  its  own  members  and  to  subpoena  witnesses 
and    commit    for    contempt    when    necessary    for    performing    its 

3  Kansas  v.  Colorado,  206  U.  S.  46,  81-83,  Corwin,  o/).  cit.,  p.  31. 

4  Parsons  v.  U.  S.,  167  U.  S.  324;  Willoughby,  op.  cit.,  pp.  1181-1184, 
and  Congressional  debate  of  1789  on  the  question  there  cited.  Infra,  sec. 
230.  The  removal  power  is  not,  however,  regarded  as  an  inherent  executive 
power  in  the  states.     Goodnow,  op.  cit.,  p.  311. 

^  In  re  Debs,  158  U.  S.  595;  Carter  v.  Va.,  96  Va.  791;  Willoughby,  op. 
cit.,  pp.  1268-1270;  J.  P.  Hall,  Constitutional  Law,  p.  19. 

*  Anderson  v.  Dunn,  6  Wheat.  204;  Kilbourn  v.  Thompson,  103  U.  S. 
168;  In  re  Chapman,  166  U.  S.  661;  Willoughby,  op.  cit.,  p.  1272. 

^  See  Taft,  Our  Chief  Magistrate,  pp.  73,  140,  144;  Senate  debate  of 
1831  quoted  Corwin,  op.  cit.,  p.  59;  and  infra,  sec.  92. 

^ Infra,  sees.  53-55- 

^  Goodnow,  op.  cit.,  p.  38. 


SEPARATION  OF  POWERS.  97 

legislative  functions.^*'  The  President  is  immune  from  judicial 
process  except  trial  of  impeachment  and  holds  himself  entitled  to 
exclusive  control  of  the  personnel  of  the  national  civil  and  military 
service  through  the  power  to  commission  and  remove  officials." 
The  Federal  Justices  are  assured  permanence  of  tenure  and  com- 
pensation and  the  courts  hold  themselves  to  enjoy  certain  inherent 
privileges  such  as  the  power  to  commit  for  contempt  and  perhaps 
to  control  admissions  to  the  bar  and  rules  of  practice. ^^  These 
rights,  privileges  and  inherent  powers  cannot  be  impaired  by  action 
of  the  organ  itself  or  by  that  of  other  organs. 

54.  Protection  of  Delegated  Powers  of  Departments. 

Each  department  is  entitled  to  exercise  the  powers  delegated  to 
it  by  the  Constitution.  Two  interpretations  of  this  guarantee  of 
quite  divergent  effect  must  be  distinguished.  Thus  it  is  generally 
recognized  that  one  organ  cannot,  unless  the  Constitution  expressly 
provides  otherwise,  take  away  a  power  specifically  or  impliedly 
delegated  to  another  organ  or  give  away  a  power  so  delegated  to 
itself. ^^  But  it  is  sometimes  contended,  that  in  addition,  one  organ 
cannot  so  exercise  its  own  powers  as  to  limit  the  discretion  of 
another  organ  or  of  itself  in  the  future  exercise  of  its  powers. 
These  two  interpretations  are  very  different  and  much  misconcep- 
tion has  arisen  from  their  confusion.  Thus  for  the  treaty  power 
to  provide  that  in  defined  circumstances  the  United  States  would 
automatically  be  at  war,  would  be  a  clear  invasion  of  the  power 


i<*  Constitution,  I,  sees.  5,  6,  and  supra,  note  6. 

11  Mississippi  z:  Johnson,  4  Wall.  475;  Willoughby,  op.  cif.,  1300-1304; 
Constitution,  II,  sec.  3,  and  supra,  note  4. 

12  Constitution,  III,  sec.  i,  supra,  note  5.  Illinois  and  Pennsylvania  hold 
the  setting  of  standards  for  admission  to  the  bar  is  an  inherent  judicial 
power  {In  re  Day,  181  III,  y^,  In  re  Splane,  123  Pa.  527),  while  New  York 
and  North  Carolina  hold  the  contrary  (Matter  of  Cooper,  22  N.  Y.  67,  Re 
applicants  for  license,  143  N.  C.  i).  Indiana  holds  that  statutes  cannot 
lower  the  standard  set  by  court  rules  of  procedure.  (Epstein  v.  State,  128 
N.  F.  353,  Ind.  1920,  and  note  in  Minn.  Law  Rev.,  5 :  73,  Dec,  1920.) 

^3  Legislative  power  cannot  be  delegated  even  by  the  legislature  itself, 
but  the  Constitution  gives  considerable  power  to  Congress  over  the  deter- 
mination of  executive  and  judicial  competence,  Infra,  sec.  60.  But  see 
Goodnow,  op.  cit.,  p.  41. 


98       THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

of  Congress  to  declare  war.  On  the  other  hand  for  the  treaty 
power  to  provide  that  in  defined  circumstances  the  United  States 
would  declare  war,  would  not  invade  the  power  of  Congress  but 
would  merely  limit  its  discretion  in  the  future  exercise  of  this  power. 
In  certain  circumstances  the  practical  effect  might  be  the  same,  but 
the  legal  difference  would  nevertheless  exist.  It  appears  that 
constitutional  law  merely  guarantees  to  each  organ  continued  pos- 
session of  its  delegated  powers.  The  degree  of  discretion  which 
the  organ  may  actually  enjoy  in  exercising  these  powers  depends 
largely  upon  constitutional  understandings. 

55.  Prohibition  upon  Exercise  of  Uncharacteristic  Power  by  Any 
Department. 
Each  department  is  proJiibited  from  "  exercising  powers  {not 
inherent  or  expressly  delegated)  which  from  their  essential  nature 
do  not  fall  within  its  division  of  governmental  functions."  ^^  Thus 
Congress  cannot  exercise  such  judicial  powers  as  punishing  for 
contempt  unless  necessary  for  performing  its  legislative  functions,^" 
nor  such  executive  powers  as  directing  the  detailed  movement  of 
troops^**  or  appointing  officers.^^  The  courts  cannot  exercise  such 
executive  powers  as  the  giving  of  advisory  opinions^^  or  the  making 
of  decisions  which  are  reviewable  by  executive  or  legislative 
officers.^"  The  theory  has  been  most  difficult  to  apply  as  a  restric- 
tion upon  the  executive  because  methods  closely  approaching  a 
judicial  and  a  legislative  character  often  seem  essential  to  the  per- 
formance of  executive  duties.     Though  the  theory  that  the  legis- 


1*  Willoughby,  op.  cit.,  p.  1263. 

1'^  Kilbourn  v.  Thompson,  103  U.  S.  168.  Nor  can  Congress  exercise  ju- 
dicial power  by  deciding  specific  cases  involving  private  rights,  Willoughby, 
op.  cit.,  p.  1264. 

16  Ex  parte  Milligan,  4  Wall.  2,  Willoughby,  op.  cit.,  p.  1207. 

1^  Constitution,  II,  sec.  2.  Congress,  however,  has  the  inherent  power  to 
appoint  subordinate  officers  necessary  for  the  conduct  of  its  internal  busi- 
ness, Goodnow,  op.  cit.,  p.  38. 

18  See  Thayer,  Cases  of  Const.  Law,  i  :  175,  and  Willoughby,  op.  cit., 
p.   13- 

19  Hayburn's  Case,  2  Dall.  409 ;  Gordon  v.  U.  S.,  2  Wall.  561 ;  Willoughby, 
op.  cit.,  p.   1275. 


SEPARATION  OF  POWERS.  99 

lature  cannot  delegate  its  power  exists,  the  courts  actually  give  the 
force  of  law  to  executive  orders  and  regulations  issued  under 
authority  of  statute.^"  This  is  justified  by  the  theory  that  the 
ordinances  are  not  legislation  but  merely  the  application  of  a  policy 
determined  by  Congress  in  the  delegating  act.  So  also  executive 
boards  and  commissions  are  permitted  to  proceed  as  courts  and 
give  decisions  of  a  definitive  character  in  certain  types  of  cases.^^ 
The  almost  complete  control  over  the  organization  and  jurisdiction 
of  federal  courts  given  by  the  Constitution  to  Congress^^  makes 
any  attempt  by  the  courts  to  prevent  the  vesting  of  judicial  func- 
tions in  administrative  bodies  virtually  impossible.^^ 

A.  Effect  on  the  Power  to  Meet  International  Responsibilities. 

56.  Tlie  Government  as  a  Whole  Competent  to  Meet  Responsibil- 
ities. 

The  doctrine  of  separation  of  powers  does  not  impose  any 
limitation  upon  the  power  of  the  United  States  to  meet  its  inter- 
national responsibilities.  International  law  and  treaty  provisions 
have  very  seldom  directed  the  instrumentality  through  which  re- 
sponsibilities shall  be  met.  The  responsibility  rests  on  the  nation 
and  it  can  ordinarily  determine  its  own  instrumentality  for  per- 
formance. Consequently  if  any  organ  of  the  government  has 
power  to  meet  a  particular  responsibility,  or  to  provide  for  meeting 
it,  we  may  be  sure  the  government  as  a  whole  has  the  power. 
Treaties  have  occasionally  required  that  responsibilities  be  met 
through  a  particular  instrumentality,  as  that  certain  controversies 
be  submitted  to  an  international  tribunal,  or  that  the  compromis 
of  arbitrations  be  made  by  the  President  with  advice  and  consent 
of  the  Senate.^*     Such  reference  to  domestic  organs  has  usually 


20  Field  z:  Clark,  143  U.  S.  649;  Goodnow,  op.  cit.,  pp.  42,  85. 

21  U.  S.  V.  Ju  Toy,  198  U.  S.  253;  Willoughby,  op.  cit.,  p.  1278,  et  seq. 

22  Constitution,  I,  sec.  8,  cl.  9;  III,  sec.  i,  sec.  2,  cl.  2,  seems  to  give 
Congress  complete  control  over  the  courts  except  the  original  jurisdiction 
of  the  Supreme  Court.    Ex  Parte  McCardle,  7  Wall.  506. 

23  Willoughby,  op.  cit.,  p.  1277. 

2*  See  pecuniary  claims  convention  with  Latin  American  States,  1910, 
Charles,  Treaties,  345;  arbitration  treaty  with  Great  Britain,  1908,  Art.  V, 
Malloy,  Treaties,  p.  814.  For  other  treaty  provisions  referring  to  specific 
organs  see  Wright,  Columbia  Law  Rev.,  20:  123-4. 


100     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

been  declaratory  of  the  Constitution,  and  has  been  inserted  out  of 
excess  of  caution  to  give  notice  to  the  foreign  government  of 
constitutional  steps  which  must  be  taken,  or  by  insistence  of  one 
department  of  the  government  to  prevent  anticipated  usurpations 
by  another.  If,  however,  a  treaty  required  that  certain  acts  be 
performed  by  a  particular  organ,  which,  under  the  theory  of  sep- 
aration of  powers,  could  not  exercise  such  a  power,  that  clause  of 
the  treaty  could  not  be  executed  by  the  United  States.  Such  a 
treaty  clause,  however,  would  be  unconstitutional  from  the  start. 
The  question  would  relate,  therefore,  to  the  power  to  make  treaties 
rather  than  to  the  power  to  meet  international  responsibilities.^^ 

57.  Power  of  President  and  Courts  to  Meet  International  Responsi- 
bilities. 

Although  the  doctrine  of  separation  of  powers  does  not  legally 
limit  the  power  of  the  government  to  meet  its  responsibilities,  it 
often  throws  practical  difficulties  in  the  way  of  prompt  action. 
Congress  is  by  nature  slow  moving  but  often  under  the  constitu- 
tional distribution  of  powers  it  alone  has  power  to  meet  certain 
international  responsibilities.  Were  the  President  and  the  courts 
vested  with  adequate  authority  to  act,  delay  in  the  meeting  of 
responsibilities  might  often  be  avoided.  The  President  and  courts 
cannot,  under  the  doctrine  which  prohibits  the  delegation  of  legis- 
lative power,  be  vested  with  such  exclusive  congressional  powers 
as  that  to  appropriate  money  and  to  declare  war.  Thus  a  prompt 
meeting  of  responsibilities  requiring  such  acts  depends  upon  con- 
gressional observance  of  the  constitutional  understanding  which 
enjoins  all  departments  to  exercise  such  powers  as  they  have  in 
order  promptly  to  meet  international  responsibilities.^'^ 

Often,  however,  it  is  within  the  power  of  Congress  to  vest  the 
President  and  courts  by  general  law  with  adequate  power  to  meet 
responsibilities,  and  a  mass  of  legislation  with  this  purpose  has 
grown  up  dealing  especially  with  the  enforcement  of  neutrality, 
the  protection  of  diplomatic  officers,  the  protection  of  foreign 
securities,  the  suppression  of  piracy,  the  extradition  of  criminals, 


25  Supra,  sees.  45,  46. 
^^  Infra,  sec.  258. 


SEPARATION  OF  POWERS.  101 

and  the  enforcement  of  many  treaties  such  as  that  for  supressing 
the  slave  trade  and  for  the  protection  of  migratory  birds.  No 
general  law  has  as  yet  been  passed  giving  the  President  and  courts 
adequate  power  to  protect  the  rights  of  resident  aliens  guaranteed 
by  international  law  and  treaty,  though  Congress,  undoubtedly, 
has  power  to  pass  such  laws.^^ 

B.  Effect  on   the  Power  to  Make  International  Agreements. 

58.  Limitations  upon   the  Government  as  a   Whole. 

In  considering  limitations  derived  from  the  separation  of 
powers,  upon  the  power  of  the  national  government  to  make  inter- 
national agreements,  we  need  consider  only  the  limitations  upon 
the  full  treaty-making  power.  Whatever  independent  power  the 
President  may  enjoy  in  making  international  agreements  is  a 
fortiori  subject  to  the  same  limitations.^"''  These  limitations  exist  by 
virtue  of  the  constitutional  prerogatives  of  Congress,  of  the  courts 
and  of  the  President. 

59.  Limitations  Derived  from  Powers  of  Congress. 

"  The  treaty  making  power,"  said  Calhoun,  "  is  limited  by  such  provisions 
of  the  Constitution  as  direct  certain  acts  to  be  done  in  a  particular  way,  and 
which  prohibit  the  contrary,  of  which  a  striking  example  is  to  be  found  in 
that  which  declares  that  '  no  money  shall  be  drawn  from  the  Treasury  but 
in  consequence  of  appropriations  to  be  made  by  law.' "  -^ 

Undoubtedly,  the  treaty  power  is  prohibited  from  depriving  organs 
of  the  government  of  rights,  privileges  or  powers  inherent  or 
delegated  by  the  Constitution,  or  from  giving  them  powers  not 
appropriate  to  their  nature.  There  does  not  appear  to  have  ever 
been  a  treaty  attempting  to  deprive  Congress  of  a  delegated  power 
or  to  confer  upon  it  power  of  a  non-legislative  nature.  It  is 
believed  that  a  treaty  declaring  that  war  should  automatically  exist 
in  certain  circumstances  would  be  an  unconstitutional  deprivation 
of    Congress's   power   to  declare   war,^^   and   that   a   treaty   giving 

27  Infra,  sec.  120. 

2"a  For  an  additional  limitation  upon  the  President's  agreement-making 
power  see  appendix. 

28  Works,  1 :  203  ;  Moore,  Digest,  5  :  166. 

29  See  Taft,  address  before  League  to  Enforce  Peace,  May  26,  1916, 
Enforced  Peace,  p.  64,  and  Hughes  address,  May  28,  1917,  Proc.  Acad.  Pol. 
Set.,  vol.  7,  No.  2,  p.   14,  quoted  in  Am.  Jl.  Int.  Law,   12:   75-76. 


102     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

Congress  power  to  appoint  an  officer  of  the  United  States,  as 
for  instance  a  representative  in  an  international  body,  would  be 
an  unconstitutional  delegation  to  Congress  of  power  not  of  a  legis- 
lative character.^"' 

Jefferson  stated  among  "  exceptions "  from  the  treaty-making 
power:  "those  subjects  of  legislation  in  which  it  gave  a  participa- 
tion to  the  House  of  Representatives."  He  noticed,  however,  that 
this  exception  "  would  leave  very  little  matter  for  the  treaty  power 
to  work  on."^^  Practice  does  not  sustain  Jefferson's  contention. 
Most  treaties  have  dealt  with  subjects  within  the  delegated  powers 
of  Congress  and  have  been  held  valid. ^^  Congress  has  questioned 
the  validity  of  treaties  requiring  an  appropriation,  notably  the  Jay 
treaty  of  1794^^  and  the  Alaska  Purchase  treaty  of  1867.^*  The 
Senate  refused  consent  to  a  commercial  treaty  with  the  German 
states  in  1844  because  of  "  want  of  constitutional  competency." " 
President  Jefferson  himself  seriously  questioned  the  constitutionality 
of  the  Louisiana  annexation  treaty,^"  and  authorities  have  ques- 


30  The  exclusive  mode  of  making  appointments  described  in  the  Con- 
stitution, II,  sec.  2,  does  not  include  appointments  by  Congress.  See  also 
Goodnow,  op.  cit.,  p.  39;  Willoughby,  op.  cit.,  p.   1180. 

31  Jefferson,  Manual  of  Pari.  Prac,  sec.  52,  printed  in  Senate  rules,  1913; 
H.  of  R.  Rules,  1914;  and  Moore,  Digest,  5:  162. 

82Crandall,  op.  cit.,  p.  182;  Wright,  Am.  Jl.  Int.  Lazv,  12:  93.  "The 
principle  of  interpretation  on  which  the  doubt  is  suggested  appears  to  be 
radically  unsound  and  to  belong  in  the  category  of  notions  which  tend  to 
bring  constitutional  law  into  disrepute.  That  the  United  States  cannot  in- 
ternationally agree  to  forego  the  exercise  of  any  power  which  the  Constitu- 
tion has  conferred  on  Congress,  or  other  department  of  government,  is  a 
supposition  contradicted  by  every  exercise  of  the  treaty-making  power  since 
the  government  came  into  existence.  When  we  reflect  upon  the  number  and 
extent  of  the  powers  conferred  upon  the  national  government,  and  upon  their 
distribution  and  the  methods  prescribed  for  their  exercise,  it  is  obvious  that 
the  attempt  to  act  upon  such  a  supposition  would  exclude  the  United 
States  from  any  part  in  the  progress  of  the  world  through  the  amelioration 
of  law  and  practice  by  international  action."  Moore,  Principles  of  American 
Diplomacy,  1918,  p.  65. 

33  Wharton,  Digest,  2:  19;  Moore,  Digest,  5:  224;  Crandall,  op.  cit.,  p. 
165;  Wright,  Am.  Jl.  Int.  Law,  12:  66. 

3*  Moore,  Digest,  5:  226-228;  Crandall,  op.  cit.,  p.  175. 

35  Crandall,  op.  cit.,  pp.  189-190;  Wright,  Am.  Jl.  Int.  Law,  12:  68. 

36  Crandall,  op.  cit.,  p.  172;  Moore,  Digest,  5:  225;  Wright,  Am.  Jl.  Int. 
Law,  12:  69;  Adams,  History  of  U.  S.,  2:  83. 


SEPARATION  OF  POWERS.  103 

tioned  the  constitutionality  of  treaties  making  certain  acts  crimes,*^ 
treaties  of  guarantee  which  might  require  war  for  fulfillment/' 
and  treaties  forbidding  privateering.^^  But  treaties  on  all  these 
subjects  and  in  fact  most  other  subjects  within  the  delegated  powers 
of  Congress  have  been  made,  regularly  acted  upon  and  applied  by 
the  courts  without  question  of  constitutionality. 

"  If  this  be  the  true  view  of  the  treaty-making  power,"  said  Calhoun 
with  reference  to  the  Senate  rejection  of  the  German  treaty  in  1844,  "  it  may 
be  truly  said  that  its  exercise  has  been  one  continual  series  of  habitual 
and  uninterrupted  infringements  of  the  Constitution.  From  the  beginning 
and  throughout  the  whole  existence  of  the  Federal  Government  it  has 
been  exercised  constantly  on  commerce,  navigation,  and  other  delegated 
powers."  ■*" 

Treaties  of  this  kind  often  require  action  by  Congress  for 
execution  and  the  degree  of  discretion  Congress  may  exercise  in 
executing  them  is  determined  by  constitutional  understandings,  but 
the  treaty  is  undoubtedly  valid.  It  does  not  deprive  Congress  of 
power  but  only  of  its  full  discretion  in  the  exercise  of  power. 

60.  The  Delegation  of  Legislative  Power. 

As  an  implication  from  the  doctrine  of  separation  of  powers  it 
is  recognized  that  legislative  power  cannot  be  delegated.*^  The 
Constitution  gives  to  Congress  and  to  the  treaty-making  power 
considerable  authority  to  designate  or  even  create  organs  for  the 
exercise  of  judicial  and  executive  power*^  and  such  provision  is 

37  For  objection  of  Secretary  of  State  Marcy  to  treaties  making  priva- 
teering a  crime  see  Moore,  Digest,  2:  978;  5:  169;  Wright,  Am.  Jl.  Int. 
Law,  12:  79-80;  Crandall,  op.  cit.,  p.  242. 

38  For  objection  of  W.  J.  Bryan  and  others  see  Wright,  Am.  Jl.  Int. 
Law,  12 :  y^. 

39  Black,  Constitutional  Law,  1910,  p.  274;  Moore,  Principles  of  Ameri- 
can Diplomacy,  p.  64. 

40  Moore,  Digest,  5:  164;  Willoughby,  op.  cit.,  p.  491;  Wright,  Am.  Jl. 
Int.  Law,  12:  68. 

41  Field  7'.  Clark,  143  U.  S.  649;  Willoughby,  op.  cit.,  pp.  1317-1332. 

42  Congress  has  power  to  create  inferior  federal  courts  (Constitution,  I, 
sec.  8,  cl.  9;  III,  sec.  i),  to  regulate  their  jurisdiction  and  the  appellate  juris- 
diction of  the  Supreme  Court  (III,  sec.  2,  cl.  2),  to  create  "offices"  (II, 
sec.  2,  cl.  2),  and  to  create  and  regulate  a  military  and  naval  establishment 
(I,  sec.  8,  cl.   12-16).     See  also  McCuHoch  ^,  Md-,  4  Wheat.  316,  holding 


104     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

not  considered  incompatible  with  the  theory  of  separation  of 
powers,  but  no  organs  other  than  those  specifically  empowered 
thereto  by  the  Constitution  can  be  authorized  to  exercise  legislative 
power. 

"  The  Legislative,"  said  John  Locke,  "  neither  must  nor  can 
transfer  the  power  of  making  laws  to  anybody  else,  or  place  it 
anywhere  but  where  the  people  have."  *^ 

However,  this  does  not  mean  that  all  powers  which  the  Legis- 
lature might  exercise  are  incapable  of  delegation.  It  is  well 
established  that  Congress  can  delegate  to  the  President  or  other 
authority  power  to  decide  when^*  and  where*^  the  conditions  exist 
which  are  to  bring  its  enacted  policy  into  operation,  and  the 
method*"  by  which  such  a  policy  is  to  be  administered.  The  legis- 
lative power,  which  cannot  be  delegated,  is  not  confined  to  the 
making  of  permanent  laws  but  includes  such  political  powers  of 
Congress  as  appropriating  money  and  declaring  war.*^  Further- 
more, "legislative  power"  is  not  confined  to  the  powers  of  Congress 
but  includes  political  powers  given  by  the  Constitution  to  other 
organs.  Thus  the  treaty-making  power  exercises  legislative  power 
which  cannot  be  delegated  since  its  acts,  by  Article  VI,  constitute 
"  the  supreme  law  of  the  land "  and  this,  nothwithstanding  the 
apparent  contradiction  in  the  statement  of  Article  I,  section  i,  that 
"All  Legislative  power  herein  granted  shall  be  vested  in  a  Congress 
of  the  United  States."  *» 


that  Congress  may  create  other  instrumentalities,  necessary  and  proper  for 
carrying  out  constitutional  powers.  The  treaty  power  may  provide  for 
courts.  In  re  Ross,  140  U.  S.  453;  The  Konigin  Luise,  184  Fed.  170  (1910)  ; 
Wright,  Am.  Jl.  Int.  Law,  12 :  70.     See  also  infra,  sees.  225,  226. 

■*3  Treatise  on  Civil  Government,  Works,  vol.  5,  sec.  142,  quoted  Cooley, 
Constitutional  Limitations,  6th  ed.,  p.  137. 

^*  Martin  v.  Mott,   12  Wheat.  19;  Field  v.  Clark,   143  U.  S.  649   (1892). 

^'s  Dalby  v.  Wolf,  14  Iowa  228  (1862).  Legislative  power  may  be  dele- 
gated to  local  bodies.  State  v.  Noyes,  30  N.   H.  279. 

48  Morrill  v.  Jones,  106  U.  S.  466;  Ex  Parte  Killock,  165  U.  S.  526. 

*^  The  phraseology  of  the  clauses  conferring  these  powers  indicates  that 
they  cannot  be  delegated.    Constitution,  I,  sec.  8,  cl.  2;  sec.  9,  cl.  7. 

*8  The  principle  that  legislative  power  cannot  be  delegated  has  always 
been  assumed  to  be  applicable  to  the  treaty  power.     See  Senate  For.  Rel. 


SEPARATION  OF  POWERS.  105 

Thus  "  legislative  power  "  includes  the  power  to  make  general 
laws  and  political  decisions  in  whatever  organ  vested  by  the  Con- 
stitution and  does  not  include  the  executive  power  of  carrying  out 
policies  and  enforcing  decisions,  nor  the  judicial  power  of  deciding 
questions  of  fact  and  applying  law  to  particular  cases. 

6i,  Congressional  Delegation  of  Power  to  Make  International 
Agreements. 
Although  Congress  has  no  power  to  make  treaties,  it  has  power 
to  make  laws  on  many  subjects  which  may  be  appropriate  for  inter- 
national agreement.  Within  this  field  it  has  delegated  power  to 
the  President**  to  make  international  agreements  in  pursuance  of 
a  policy  outlined  by  Legislation  and  such  delegation  has  been  sus- 
tained by  the  courts.  Thus  by  an  act  of  1872^*^  Congress  provided 
that  "  for  the  purpose  of  making  better  postal  arrangements  with 
foreign  countries,"  the  postmaster-general,  acting  under  the  advice 
of  the  President,  might  "  negotiate  and  conclude  postal  treaties." 
The  United  States  has  become  a  party  to  the  Universal  Postal 
Union  Convention  under  this  authority. ^^  Similar  provision  for 
the  conclusion  of  patent,  copyright  and  trademark  agreements  have 
been  made.'^^ 


Committee.  Kept.  62d  Cong.,  ist  sess.,  S.  Doc.  98,  p.  6,  and  remarks  of 
Senator  Walsh,  Mont.,  Cong.  Rec,  58:  86og,  Nov.  8,  1919,  quoted  in  Am. 
Jl.  Int.  Lazv,  12:  91,  and  Col.  Law  Rev.,  20:   133. 

^^  A  possible  encroachment  upon  the  Senate's  prerogative  in  treaty-making 
is  considered  infra,  sees.  159,  162.     See  also  note  in  appendix. 

50  U.  S.  Rev.  Stat.,  sec.  398,  Compiled  Stat.,  sec.  587,  founded  on  Act  of 
1792,  see  Crandall,  op.  cit.,  p.  131. 

51  Moore,  Digest,  5 :  870. 

52  Patents  Act,  March  3,  1903,  32  Stat.  1225,  Rev.  Stat.,  sec.  4887.  Copy- 
rights Acts,  March  3,  1891,  26  Stat,  mo,  Moore,  Digest,  2:  45,  and  March  4, 
1909,  sec.  8,  35  Stat.  1077,  Comp.  Stat.,  sec.  9220,  Crandall,  o/>.  cit.,  p.  127. 
Trademarks  Act,  March  3,  1881,  21  Stat.  502;  Feb.  20,  1905,  33  Stat.  724, 
as  amended  in  1906  and  1909,  Comp.  Stat.,  sec.  9485.  In  the  Trademark 
Cases  (100  U.  S.  82,  99)  the  Supreme  Court  held  Congress  incompetent  to 
pass  and  enforce  general  trademarks  laws  but  implied  that  such  law^s  if 
confined  to  interstate  and  foreign  commerce  or  to  the  protection  of  treaty 
rights  would  be  valid.  In  most  cases  trademark  agreements  have  been 
by  treaty  (See  Secretary  of  State  Hay  to  the  Secretary  of  the  Interior, 
Nov.  4,  1898,  Moore,  Digest,  2:  37),  but  the  statute  provided  for  the  regis- 
tration of  trademarks  used  in  interstate  or  foreign  commerce  by  persons 
residing  in  foreign  countries  which,  "  by  treaty,  convention   or  law,  applies 


106     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

Under  the  McKinley  Tariff  Act  of  1890  authority  was  given 
the  President  to  suspend  by  proclamation  the  free  entry  of  speci- 
fied articles  from  countries  which  did  not  give  reciprocity.  Ten 
reciprocity  agreements  were  negotiated  by  the  President  through 
exchange  of  notes  which  were  made  effective  by  proclamation  and 
remained  so  until  repeal  of  the  McKinley  Act  in  1894.°^  In  Field 
V.  Clark^*  the  Supreme  Court  held  this  provision  of  the  McKinley 
Act  valid  since  by  it  Congress  had  not  delegated  legislative  power 
but  merely  power  to  carry  out  the  policy  outlined  by  Congress  in 
the  Act.  The  Dingley  Tariff  of  1897  and  the  Payne- Aldrich  Tariff 
of  1909  contained  similar  provisions  for  reciprocity  which  have 
been  carried  out  by  a  number  of  agreements. ^^  Similar  provision 
for  reciprocity  with  Canada  made  in  an  act  of  191 1  has  never  been 
carried  out  because  of  the  unwillingness  of  Canada  to  act.^"  We 
may  conclude  that  power  to  make  agreements  in  pursuance  of 
enacted  legislative  policy  is  not  "  legislative  power "  and  Congress 
may  authorize  the  President  to  deal  in  this  manner  with  subjects 
within  its  competence. 

62.  Treaty  Delegations  of  Power  to  National  Organs. 

Treaties  have  on  occasion  delegated  power  to  both  national  and 
international  organs.  These  provisions  have  often  been  attacked 
on  the  ground  that  "  legislative  power  "  has  been  unconstitutionally 
delegated.     The  Cuban  treaty  of  1903,  Article  VII,  authorized  the 


such  privileges  to  citizens  of  the  United  States"  (sec.  3,  Comp.  Stat.,  sec. 
9489).  Apparently  the  President  might  independently  recognize  the  extension 
of  laws  to  American  citizens  by  foreign  nations,  entitling  their  citizens  to 
the  privileges  of  the  act,  but  in  fact,  such  recognition  seems  always  to  have 
been  by  treaty,  except  with  reference  to  reciprocal  protection  in  consular 
courts  in  China  and  Morocco.  See  Crandall,  op.  cit.,  p.  130;  Willoughby, 
op.  cit.,  p.  477. 

53  U.  S.  Tariff  Commission,  Reciprocity  and  Commercial  Treaties,  1919, 
pp.  27,  153;  Crandall,  op.  cit.,  p.  122;  Willoughby,  op.  cit.,  pp.  478.  See 
also  Gresham,  Secretary  of  State,  to  Mr.  Mendonga,  Brazilian  Minister, 
Oct.  26,  1894,  Moore,  Digest,  5:  359-362. 

6*  Field  V.  Clark,  143  U.  S.  649  (1892). 

"5  U.  S.  Tariff  Commission,  op.  cit.,  pp.  29,  22,  205,  271 ;  Crandall,  op.  cit., 
p.  123;  Fish,  Am.  Diplomacy,  p.  471. 

56  Act  July  26,  191 1,  37  Stat.  4,  Comp.  Stat.,  sec.  5326;  Crandall,  op.  cit., 
p.  125;  U.  S.  Tariff  Commission,  op.  cit.,  pp.  36-38,  371. 


SEPARATION  OF  POWERS.  107 

President  to  acquire  naval  bases  in  Cuba  and  in  accord  therewith 
President  Roosevelt  acquired  Guantanamo  by  executive  agreement." 
Here  the  President  was  clearly  carrying  out  the  policy  laid  down  by 
the  treaty  and  the  case  was  clearly  within  the  precedents  of  con- 
gressional delegation  of  power  to  make  international  agreements. 

One  of  the  proposed  Senate  reservations  to  the  treaty  of  Ver- 
sailles provided  for  denunciation  of  the  League  of  Nations  Covenant 
on  two  years,  notice  by  "  concurrent  resolution "  of  Congress.^* 
The  only  constitutional  authorities  for  terminating  treaties  are 
Congress  by  an  act  signed  by  the  President  or  passed  over  his 
veto,  the  treaty-making  power  and  possibly  the  President  alone."** 
Clearly  the  termination  of  a  law,  such  as  a  treaty,  is  an  exercise 
of  legislative  power  and  cannot  be  delegated  to  any  authority 
other  than  those  specified  for  that  purpose  by  the  Constitution.®" 
It  was  contended  by  the  President  and  in  the  Senate,  the  writer 


57  The  provision  of  the  treaty  was  also  contained  in  an  act  of  Congress 
of  March  2,  1901  (the  Piatt  Amendment),  and  in  the  Cuban  Constitution.  An 
agreement  to  make  the  lease  was  signed  February  16,  1903,  and  the  lease 
itself  was  signed  July  2,  1903,  while  the  treaty,  although  signed  May  22, 
1903,  was  not  proclaimed  until  July  2,  1904.  Thus  the  lease  was  in  reality 
authorized  by  the  act  of  Congress  rather  than  by  the  treaty.  See  Malloy, 
Treaties,  pp.  35S-363.     For  other  examples  see  Crandall,  op.  cit.,  p.  ii7- 

58  Lodge  Reservation  No.  i,  in  form  voted  on  by  Senate,  Nov.  19,  1919, 
and  March  19,  1920.  For  text  of  Lodge  Reservations  see  Cong.  Rec,  Nov. 
19,  1919,  58:  9289;  March  19,  1919,  59:  4915;  The  League  of  Nations,  World 
Peace  Foundation,  Boston,  III,  No.  4,  pp.  166,  182,  and  note.  Col.  Law 
Rev.,  20:  156. 

69Jef?erson,  Manual,  sec.  52,  Senate  Rules,  1913,  p.  150;  House  Rules, 
1914,  sec.  592;  Hinds,  Precedents,  5:  6270;  President  Hayes,  Message,  March, 
1879,  Richardson,  Messages,  7-  5191  Sen.  Rept.,  No.  97,  34th  Cong.,  ist  Sess.; 
Taft,  Our  Chief  Magistrate,  p.  117;  Willoughby,  op.  cit.,  p.  518;  Crandall,  op. 
cit.,  pp.  401-462;  Wright,  Col.  Law  Rev.,  20:  129.     See  also  infra,  sees.  181-187. 

80  The  Constitution  provides  that  "  Every  Order,  Resolution,  or  Vote 
to  which  the  Concurrence  of  the  Senate  and  House  of  Representatives  may 
be  necessary  (except  on  a  question  of  Adjournment)  shall  be  presented  to 
the  President  of  the  United  States;  and  before  the  same  shall  take  Effect, 
shall  be  approved  by  him,  or  being  disapproved  by  him,  shall  be  repassed 
by  two  thirds  of  the  Senate  and  House  of  Representatives,  according  to  the 
Rules  and  Limitations  prescribed  in  the  case  of  a  Bill." 


108     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

believes  correctly,  that  delegation  of  this  power  to  a  mere  majority 
of  the  two  houses  of  Congress  without  the  President's  approval 
would  be  an  unconstitutional  delegation  of  legislative  power.*^ 

An  extended  controversy  has  arisen  over  the  delegation  of 
power  to  the  President  by  general  arbitration  treaties,  to  make  the 
comproniis  or  instrument  submitting  specific  cases  to  arbitration. 
The  I  Hague  Convention  of  1899,  as  also  that  of  1907,  provided  a 
panel  of  arbitrators,  a  method  for  selecting  a  coUrt  and  a  pro- 
cedure for  arbitrating  cases.  By  Article  16,  the  parties  including 
the  United  States  recognized  arbitration  "  as  the  most  efficacious 
and  at  the  same  time  the  most  equitable  method  of  deciding  contro- 
versies which  have  not  been  settled  by  diplomatic  methods." 
Under  these  provisions,  in  1903,  President  Roosevelt  submitted  the 
Pious  Fund  claim  against  Mexico  to  the  Hague  Tribunal,  without 
consulting  the  Senate.^^  Opinion  has  differed  as  to  whether  the 
Hague  Convention  delegated  this  power.  Simeon  E.  Baldwin  has 
said :  ®^ 

'■  The  Hague  Convention  when  ratified  by  the  Senate,  became  thus  a 
standing  warrant,  or,  so  to  speak,  a  power  of  attorney,  from  the  United 
States  to  the  President,  to  submit  such  international  controversies  as  he 
might  think  fit  to  the  ultimate  decision  of  the  International  Court  of 
Arbitration." 
Ex-Secretary  of  State  Foster,  however,  took  a  contrary  view :  " 

"  I  apprehend  that  should  our  government  decide  to  refer  any  dispute 
with  a  foreign  government  to  the  Hague  Tribunal,  President  Roosevelt,  or 
whoever  should  succeed  him,  would  enter  into  a  convention  with  the  foreign 
government,  very  carefully  setting  forth  the  question  to  be  arbitrated,  and 
submit  that  convention  to  the  Senate  for  its  advice  and  consent.  If  I  read 
the  Constitution  of  the  United  States  and  the  Hague  Convention  aright,  such 
would  be  the  only  course  permissible  by  those  instruments." 

81  "  A  statute  or  a  treaty  might  end  upon  the  occurrence  of  a  fortuitous 
event  or  upon  the  determination  of  a  certain  fact  or  of  a  certain  condition 
by  a  certain  officer,  he  having  no  discretion  on  the  subject  at  all;  but  when  it 
becomes  a  question  of  the  exercise  of  his  judgment  or  his  discretion  about 
whether  the  law  should  remain  in  force  or  whether  it  should  be  repealed, 
considering  the  good  of  the  country,  that  would  be  an  unlawful  delegation  of 
legislative  power."  Senator  Walsh,  Mont.,  Cong.  Rec,  Nov.  8,  1919,  58: 
86og.  "  I  doubt  whether  the  President  can  be  deprived  of  his  veto  power 
under  the  Constitution  even  with  his  own  consent."  President  Wilson,  letter 
to  Senator  Hitchcock,  Jan.  26,  1920. 

82  Willoughby,  op.  cit.,  p.  475. 

83  Yale  Review,  9:  415,  quoted,  Willoughby,  op.  cit.,  p.  476. 
^*Yale  Law  Jl.,  11 :  76,  quoted  Willoughby,  loc.  cit. 


SEPARATION  OF  POWERS.  109 

It  may  be  observed  that  since  the  President  has  power  under  the 
Constitution  to  settle  claims  of  the  United  States  against  foreign 
countries^^  he  unquestionably  had  power  to  submit  the  Pious  Fund 
claim  to  arbitration  aside  from  the  Hague  Convention  or  from 
the  arbitration  provision  of  the  Mexican  treaty  of  1848  in  force  in 
1903.^^  Thus  claims  against  Venezuela  were  submitted  to  the 
Hague  Tribunal  in  1903  and  1909  by  executive  protocols.^^  The 
North  Atlantic  Fisheries  arbitration  with  Great  Britain,  the  remain- 
ing Hague  Case  to  which  the  United  States  has  been  a  party,  was, 
however,  submitted  by  a  treaty,®^  though  in  this  case  treaty  sub- 
mission had  been  expressly  required  by  the  general  arbitration 
treaty  with  Great  Britain  of  1908,^®  and  the  United  States  had  made 
express  reservation  to  the  Hague  Convention  of  1907  requiring  that 
submission  to  the  Hague  Court  be  by  "  general  or  special  treaties  of 
arbitration."  "^ 

The  same  question  was  raised  with  reference  to  the  proposed 
Hay  arbitration  treaties  of  1905,  providing  for  arbitration  of  "  dif- 
ferences "  of  a  "  legal  nature "  which  do  not  affect  the  "  vital 
interests,  the  independence  or  the  honor  of  the  two  contracting 
states  and  do  not  concern  the  interests  of  third  parties."  These 
treaties  required  conclusion  of  a  "  special  agreement "  defining  the 
matter  in  dispute,  the  powers  of  the  arbitrators  and  the  procedure. 
The  Senate  was  willing  to  consent  only  if  the  word  "  treaty  "  was 
substituted  for  "  agreement "  and  President  Roosevelt  refused  to 
submit  the  treaties  thus  amended  thinking  that  a  general  arbitration 
treaty  was  valueless  if  each  specific  submission  required  conclusion 
of  a  "  special  treaty."  '^^     In   1908,  however.  Secretary  Root  con- 


^'^  Infra,  sec.  171. 

86  Art.  21,  Malloy,  Treaties,  p.  1117. 

«7  Ibid.,  pp.  1870,  1889. 

88  Ibid.,  p.  835. 

89  Art.  II,  Ibid.,  p.  814. 

'°  Ibid.,  p.  2247.  See  also  Scott,  ed.,  Reports  of  the  Hague  Conferences,  pp. 
xxvii,  903. 

Ti  Willoughby,  op.  cit.,  pp.  473-475 ;  Taft,  The  United  States  and  Peace, 
1914,  p.  95 ;  Sutherland,  op.  cit.,  p.  129. 


110     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

eluded  many  treaties  substantially  of  the  form  of  the  Hay  treaties 
with  the  Senate  amendment.''^ 

Aside  from  the  question  of  policy,  it  seems  that  the  Hay  treaties 
in  their  original  form  would  not  amount  to  an  unconstitutional 
delegation  of  legislative  power."  They  merely  authorize  the 
President  to  carry  out  the  policy  of  arbitrating  certain  classes  of 
disputes  laid  down  by  the  general  treaty  and  are  well  within  the 
decision  of  Field  v.  Clark. '^* 

63.  Treaty  Delegation   of  Power  to   International  Organs. 

Where  treaties  have  delegated  power  to  international  bodies, 
constitutional  questions  have  often  been  raised.  The  courts  have 
sustained  treaties  submitting  claims,  boundary  questions,  etc.,  to 
international  arbitration  courts  and  have  held  that  the  decision 
of  such  a  court  is  of  the  same  legal  weight  in  the  United  States  as 
the  treaty  itself.  Thus  after  the  Bering  Sea  Arbitration  Tribunal 
had  held  that  American  jurisdiction  in  Bering  Sea  terminated  at  the 
three  mile  limit,  the  United  States  Circuit  Court  of  Appeals  refused 
to  apply  the  acts  of  Congress  for  protecting  the  seal  herds,  to 
vessels  engaged  in  sealing  beyond  that  limit.'''' 

Where,  however,  treaties  have  provided  for  an  international 
commission  or  court  which  shall  decide  whether  or  not  a  particular 
dispute  is  of  a  justiciable  character  as  defined  by  the  general 
treaty,  doubt  has  been  expressed  in  the  Senate.  The  proposed 
international  Prize  Court  Convention  of  1907  with  its  attached 
protocol  of  1910  provided  that  claims  against  the  United  States 
for  defined  types  of  prize  decisions  might  be  brought  in  the  inter- 
national Prize  Court  by  private  individuals,  and  the  court  would 
itself  decide  whether  tht  case  was  within  the  described  classes  i.e., 
whether  it  had  jurisdiction.  This  treaty  and  protocol,  although 
never  operative,  were  consented  to  by  the  Senate  in  191 1.'^' 

■^2  As  example  see  British  treaty,  Malloy,  Treaties,  p.  814. 

73Crandall,  op.  cxt.,  p.  120;  Willoughby,  op.  at.,  p.  475;  Taft,  The  United 
States  and  Peace,  p.  95 ;  Moore,  Pol.  Sci.  Quarterly,  20 :  403. 

74  Field  V.  Clark,  143  U.  S.  649  (1892). 

"  U.  S.  V.  La  Ninfa,  75  Fed.  513. 

78  Charles,  Treaties,  p.  262.  A  constitutional  objection  of  a  different 
kind  connected  with  this  convention  is  considered,  infra,  sec.  64.  The  Hague 
Convention  of  1907  provided  in  article  53  that  the  Permanent  Court  might 


SEPARATION  OF  POWERS.  Ill 

In  191 1  President  Taft  negotiated  arbitration  treaties  with 
Great  Britain  and  France  providing  for  the  arbitration  of  defined 
classes  of  cases  and  for  decision  by  an  international  joint  high 
commission  upon  the  question  of  whether  a  specific  dispute  was 
within  these  classes/^  The  Senate  Foreign  Relations  Committee 
reported  adversely  on  the  latter  provision :  '^ 

"  This  recommendation  is  made  because  there  can  be  no  question 
that,  through  the  machinery  of  the  joint  commission,  as  provided  in  Articles 
II  and  III  and  with  the  last  clause  of  Article  III  included,  the  Senate  is  de- 
prived of  its  constituent  power  to  pass  upon  all  questions  involved  in  any 
treaty  submitted  to  it  in  accordance  with  the  Constitution.  The  committee 
believes  that  it  would  be  a  violation  of  the  Constitution  of  the  United  States 
to  confer  upon  an  outside  commission,  powers  which,  under  the  Constitution, 
devolve  upon  the  Senate.  .  .  .  To  vest  in  an  outside  commission  the  power  to 
say  finally  what  the  treaty  means  by  its  very  general  and  indefinite  language 
is  to  vest  in  that  commission  the  power  to  make  for  us  an  entirely  different 
treaty  from  that  which  we  supposed  ourselves  to  be  making." 

The  delegation  of  power  here  objected  to  was  of  the  same  sort 
as  that  to  which  exception  had  been  taken  in  the  Hay  treaties  of 
1905.  In  the  one  case,  however,  delegation  was  to  the  Pres- 
ident, in  the  other  to  an  international  commission.'®     Neither  case 


arrange  the  compromis  on  application  of  one  party  where  the  dispute  is 
"  covered  by  a  general  treaty  of  arbitration  concluded  or  renewed  after  the 
present  convention  has  come  into  force,"  specifying  subjects  for  compulsory 
arbitration ;  and  where  the  dispute  arises  from  contract  debts  due  by  one 
power  to  the  nationals  of  another.  (Malloy,  Treaties,  p.  2238.)  The  Senate 
consented  to  ratification  of  the  treaty  with  a  reservation  to  this  article  assert- 
ing that  the  United  States  "  excludes  from  the  competence  of  the  permanent 
court  the  power  to  frame  the  'compromis'  required  by  general  or  special 
treaties  of  arbitration  concluded  or  hereafter  to  be  concluded  by  the  United 
States,  and  further  expressly  declares  that  the  '  compromis '  required  by 
any  treaty  of  arbitration  to  which  the  United  States  may  be  a  party  shall 
be  settled  only  by  agreement  between  the  contracting  parties,  unless  such 
treaty  shall  expressly  provide  otherwise."  {Ibid.,  p.  2248,  and  Scott,  ed., 
Reports  of  the  Hague  Conferences,  introduction,  p.  xxvii.) 

^^  These  treaties  though  never  ratified  are  printed  in  Charles,  Treaties, 
pp.  380-389. 

78  62d  Cong.,  1st  sess.,  S.  Doc.  98,  p.  6;  Cong.  Rec,  47:  3935. 

■^8  It  may  be  noticed  that  the  Taft  treaties  accepted  the  point  upon  which 
the  Senate  had  insisted  in  1905  and  required  that  the  "compromis"  sub- 
mitting each  case  be  a  treaty  consented  to  by  the  Senate,  even  after  the 
Joint  High  Commission  had  given  its  decision.     See  next  note. 


112     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

seems  to  involve  a  delegation  of  legislative  power,  but  rather  of 
judicial  power,  to  interpret  the  treaty.  The  minority  report  of  the 
Senate  Committee  signed  by  Senators  Root  and  Cullom  pointed  out 
that  the  majority  view  could  "not  be  maintained  except  on  the 
theory  that  all  general  treaties  of  arbitration  "  involve  a  like  un- 
constitutional delegation  of  power,  the  only  difference  being  that 
the  treaties  under  consideration  submitted  "  certain  described 
classes  "  of  cases  to  arbitration,  instead  of  particular  cases.  The 
decision  of  the  joint  high  commission  on  what  questions  are 
justiciable  "  is  not  delegating  to  a  commission  power  to  say  what 
shall  be  arbitrated ;  it  is  merely  empowering  the  commission  to  find 
whether  the  particular  case  is  one  that  the  United  States  have  said 
shall  be  arbitrated."*"  President  Taft,  Senator  Sutherland,  J.  B. 
Moore,  and  other  constitutional  authorities  have  endorsed  this 
opinion.^^ 

A  logical  carrying  out  of  the  majority  theory  would  seem  to 
deny  any  power  to  conclude  treaties  in  good  faith,  for  all  treaties 
require  interpretation,  and  to  say  that  the  interpretations  must 
always  be  according  to  the  will  of  the  existing  treaty-making  power 
of  the  United  States,  however  that  may  differ  from  the  intent  of 
the  original  negotiators,  is  virtually  to  substitute  political  expediency 
for  treaty  obligation.  Good  faith  would  seem  to  require  that  the 
true  intent  of  the  instrument  govern  its  application  through  its  entire 
life,  and  it  is  hard  to  see  where  a  more  impartial  determination 
of  what  this  intent  was  could  be  obtained  than  in  an  international 
tribunal.  The  common  law  doctrine  that  no  one  should  be  judge 
in  his  own  case  would  seem  as  applicable  to  international  as  to 
private  relations.*^ 


80  Ibid.,  p.  g.  This  report  was  signed  by  Senators  Root  and  Cullom. 
In  a  special  minority  report,  Senator  Burton  pointed  out  that  even  after 
decision  by  the  joint  high  commission  the  "  compromis"  would  go  to  the 
Senate.  "  In  such  case,  as  in  every  other  case,  it  would  be  within  the  power 
of  the  Senate  to  refuse  its  advice  and  consent  to  the  special  agreement,  but 
it  would  be  contrary  to  its  treaty  obligation."  Ibid.,  p.  12.  See  also  Wright, 
Am.  11.  Int.  Law,  12:  93,  Col.  Law  Rev.,  20:  133. 

81  Taft,  The  United  States  and  Peace,  p.  113;  Our  Chief  Magistrate,  p. 
107;  Sutherland,  op.  cit.,  p.  132;  Moore,  Independent,  Aug.  8,  191 1. 

82  See  infra,  sec.  139. 


SEPARATION  OF  POWERS.  113 

This  particular  question  has  not  been  raised  in  connection  with 
the  League  of  Nations  Covenant  because,  according  to  Article  XIII, 
disputes  can  be  submitted  to  arbitration  only  by  consent  of  the 
parties  and  in  the  United  States  this  consent  would  be  indicated  by 
the  treaty-making  power  in  concluding  the  instrument  of  sub- 
mission.^^ Senator  Knox  and  others  have,  however,  in  effect 
asserted  that  the  powers  conferred  upon  the  Council  and  Assembly 
of  the  League  of  Nations  are  in  part  legislative,  and  hence  in  so 
far  the  treaty  would  be  unconstitutional.**  It  is  believed  that  this 
criticism  overlooks  three  important  aspects  of  the  Covenant, 
(i)  "Decision  at  any  meeting  of  the  Assembly  or  of  the  Council 
(except  where  otherwise  expressly  provided)  shall  require  the 
agreement  of  all  the  tnembers  of  the  League  represented  at  the 
meeting,"  *^  thus  the  United  States  would  not  be  delegating  legis- 
lative power  any  more  than  it  has  in  participating  in  international 
conferences  such  as  the  Hague,  Algeciras  or  Versailles  Confer- 
ences. It  will  be  noticed  that  it  is  not  the  agreement  of  the  Amer- 
ican representative  which  is  required  but  of  the  "  member  of  the 
League,"  that  is,  of  the  United  States  itself,  and  as  has  been  noticed 
the  United  States  cannot  be  bound  by  any  agreement  unless  the 
proper  constitutional  organ  has  acted.*''  Thus  if  the  decision  was 
of  a  character  which  could  only  be  made  by  the  treaty-making 
power,  the  United  States  would  not  be  bound  until  the  Senate  had 
consented.  Apparently  the  only  decisions,  aside  from  questions  of 
procedure.*^  which  by  express  exception  might  be  made  without 
consent  of  the  United  States,  are  to  admit  new  members  (Art.  I) 

83  The  scheme  drafted  by  Mr.  Root  and  others  for  the  international 
court  authorized  by  Article  XIV  of  the  Covenant  would,  however,  raise  the 
issue,  since  Article  XXXIV  provides:  "In  the  event  of  a  dispute  as  to 
whether  a  certain  case  is  within  any  of  the  categories  above  mentioned, 
the  matter  shall  be  settled  by  the  decision  of  the  court."  Am.  Jl.  hit.  Law, 
Supp.  14:  379  (Oct.,  1920).  This  was  modified  by  the  Assembly  of  the 
League  of  Nations  in  December,  1920,  Il>id.,  15:  264. 

"  Address  in  Senate,  March  i,  1919. 

8'  Art.  V.  The  United  States  is  by  the  terms  of  the  Covenant  repre- 
sented in  both  the  Council  and  the  Assembly. 

88  Supra,  sec.  24. 

87  These  may  be  settled  by  a  majority  vote  (Art.  V).  Amendments 
to  the  Covenant,  though  requiring  ratification  by  only  a  majority  of  the 
members  represented  in  the  Assembly,  require  ratification  by  all  the  members 


114     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

which  requires  two-thirds  of  the  Assembly  but  which  is  clearly  not 
an  exercise  of  legislative  power,  and  to  make  a  report  in  a  dispute 
likely  to  lead  to  a  rupture,  to  which  the  United  States  is  a  party. 
(Art.  XV. )^*     This  will  be  discussed  presently. 

(2)  The  other  consideration  which  seems  to  have  been  over- 
looked by  critics  of  the  Covenant  is  that  no  legislative  or  binding 
political  power  has  been  conferred  upon  the  Council  or  Assembly. 
The  powers  of  these  bodies  are  limited  to  the  giving  of  "  advice  " 
or  the  making  of  "  proposals,"  "  recommendations  "  or  "  reports," 
which  even  if  unanimous  are  of  binding  efifect  in  only  three  cases.^* 
These  three  cases  are:  (a)  The  limits  of  armament  once  agreed 
upon  by  members  "  shall  not  be  exceeded  without  the  concurrence 
of  the  Council."  (Art.  VIII,  sec.  4.)  (b)  If  a  country  has  vol- 
untarily accepted  a  mandate,  and  has  neglected  to  fully  define  "  the 
degree  of  authority,  control  or  administration  "  which  it  is  to  exer- 
cise, the  Council  may  "explicitly  define"  these  powers  in  each  case. 
(Art.  XXII,  sec.  8.)  (c)  A  dispute  likely  to  lead  to  a  rupture 
must  be  submitted  to  the  Council  or  Assembly  and  if  no  solution 
is  reached  the  Council  or  Assembly  make  a  report. 

"  If  a  report  by  the  Council  is  unanimously  agreed  to  by  the  members 
thereof,  other  than  the  representatives  of  one  or  more  of  the  parties  to 
the  dispute,  the  members  of  the  League  agree  that  they  will  not  go  to  war 
with  any  party  to  the  dispute  which  complies  with  the  recommendations  of 
the  report."     (Art.  XV,  sec.  6.) 


represented  in  the   Council,   thus  always  including  the  United  States   (Art. 
26). 

88  See  Lowell,  The  Covenanter,  N.  Y.,  1919,  p.  81,  and  British  Official 
Commentary,  printed  in  Pollock,  The  League  of  Nations,  London,  1920,  p. 
208. 

89  Lowell,  The  Covenanter,  pp.  40,  80.  Some  doubt  exists  as  to  whether 
the  "  advice  "  which  the  Council  may  give  as  to  the  method  of  carrying  out 
the  guarantees  of  Article  X  is  obligatory.  Lowell  (Ibid.,  p.  40)  and  Pollock 
(op.  cit.,  p.  128)  believe  not,  while  the  Official  Swiss  Commentary  holds  that 
for  members  that  have  assented  to  the  "  advice,"  if  unanimous,  it  is  obligatory. 
(League  of  Nations,  World  Peace  Foundation,  III,  No.  3,  p.  125.)  So  far 
as  the  "advice "  extends  merely  to  an  interpretation  of  the  meaning  of  the 
treaty,  we  are  inclined  to  agree  with  the  latter  opinion  (supra,  sec.  35),  which 
appears  to  be  consonant  with  the  interpretation  of  similar  terms  in  article  XVI 
by  the  Second  Assembly  of  the  League  (see  Report  of  International  Block- 
ade Committee,  Second  Assembly  Document  No.  28,  part  II,  and  resolutions 
adopted  October  4,  1921,  Official  Journal,  Special  Supp.  No.  6,  p.  25), 


SEPARATION  OF  POWERS.  115 

If  the  dispute  is  submitted  to  the  Assembly  it  has  the  same  effect 

"  if  concurred  in  by  the  Representatives  of  those  Members  of  the  League  rep- 
resented on  the  Council  and  by  a  majority  of  the  other  Members  of  the 
League,  exclusive  in  each  case  of  the  Representatives  of  the  parties  to  the 
dispute."     (Art.  XV,  sec.  lo.) 

Although  binding  decisions  may  be  given  in  the  first  two  cases  by 
unanimous  action  of  the  Council,  the  power  exercised  would  not 
be  "  legislative "  but  merely  a  carrying  out  of  the  policy  already 
agreed  upon  in  the  treaties  providing  for  disarmament  or  accept- 
ance of  the  mandatory.  Decision  on  such  a  question  clearly  may 
be  delegated.''*'  In  the  third  case  which  relates  to  the  settlement 
of  political  controversies  which  the  parties  have  not  agreed  to 
submit  to  arbitration,  it  will  be  observed  that  the  decision  even  if 
unanimous  with  exception  of  the  parties  to  the  dispute  is  not  strictly 
binding.  If  the  United  States  were  a  party  to  the  dispute  it  would 
not  be  legally  bound  to  follow  the  report,  even  if  all  other  members 
of  the  Council  or  Assembly  had  signed  it.  Doubtless,  however, 
there  would  be  a  practical  compulsion,  in  view  of  the  fact  that  it 
could  get  no  members  of  the  League  as  allies  in  case  it  went  to  war 
with  the  other  party  to  the  dispute.^^ 

(3)  A  third  consideration  which  should  be  noticed  is  that  the 
most  discussed  provisions  of  the  Covenant  such  as  Articles  X,  XII, 
and  XVI  do  not  delegate  power  at  all.  They  are  guarantees  which 
leave  to  the  members  of  the  League  discretion  in  deciding  upon  the 
method  for  carrying  them  out  in  concrete  cases. ^^  Of  course  the 
United  States  would  have  to  follow  constitutional  provisions  in 
doing  so.^^  It  does  not  appear  that  there  is  any  unconstitutional 
delegation  of  legislative  power  in  the  League  of  Nations  Cov- 
enant. 

64.  Limitations  Derived  from  Powers  of  the  Judiciary. 

The  constitutionality  of  a  treaty  seems  never  to  have  been 
questioned    on    the    ground    that    it    was    itself    an    exercise    of 

^0  Supra,  sec.  60. 

91  See  British  Commentary,  Pollock,  op.  cit.,  p.  212;  Swiss  Commentary, 
op.  cit.,  p.  137. 

92  Lowell,  The  Covenanter,  p.  2)7- 

93  W.  H.  Taft,  The  Covenanter,  p.  60  et  seq.  See  also  Wright,  Am. 
Jl.  Int.  Law,  12 :  75,  and  supra,  sec.  59. 


116     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

judicial  power  though  treaties  or  arbitrations  based  upon  them  have 
interpreted  statutes  and  international  law  and  the  courts  have 
followed  such  decisions.***  Nor  is  there  any  encroachment  upon 
the  judicial  power  when  treaties  vest  judicial  powers  in  bodies 
other  than  the  supreme  and  inferior  courts  of  the  United  States. 
Consular  courts  abroad  and  international  courts  founded  on 
treaty  do  not  exercise  "  the  judicial  power  of  the  United  States  "  in 
the  meaning  of  Article  III  of  the  Constitution^^  and  foreign  con- 
sular courts  in  the  United  States  for  the  trial  of  seamen  of  vessels 
of  the  consul's  nationality  have  been  held  of  "  ministerial "  rather 
than  judicial  character,  though  the  grounds  for  this  distinction  is 
not  apparent."^ 

A  treaty  depriving  courts  of  any  inherent  right,  privilege  or 
power  would,  undoubtedly,  be  void,"^  though  a  treaty  may  exempt 
certain  persons  from  the  judicial  power  of  subpoena''^  and  need 
not  provide  security  of  tenure  and  compensation   for  the  judges 


9*U.  S.  V.  La  Ninfa,  75  Fed.  513;  Comegys  v.  Vasse,  i  Pet.  193  (1828); 
Meade  z:  U.  S.,  9  Wall.  691;  Wright,  Am.  Jl.  Int.  Law,  12:  85,  and  supra, 
note  75. 

"5 "  The  treaty-making  power  vested  in  our  government  extends  to 
all  proper  subjects  of  negotiation  with  foreign  governments.  It  can,  equally 
with  any  of  the  former  or  present  governments  of  Europe,  make  treaties 
providing  for  the  exercise  of  judicial  authority  in  other  countries  by  its 
officers  appointed  to  reside  therein.  .  .  .  The  Constitution  can  have  no 
operation  in  another  country.  When,  therefore,  the  representatives  or  ofificers 
of  our  government  are  permitted  to  exercise  authority  of  any  kind  in  another 
country,  it  must  be  on  such  conditions  as  the  two  countries  may  agree,  the 
laws  of  neither  one  being  obligatory  upon  the  other."  In  re  Ross,  140  U. 
S.  453  (1890).  Nor  is  the  "Judicial  power  of  the  United  States"  exercised 
by  congressional  courts  in  the  territories  (Am.  Ins.  Co.  v.  Canter,  i  Pet. 
Sii)  ;  nor  by  presidential  courts  organized  in  territory  under  military  occupa- 
tion (Neeley  v.  Henkel,  180  U.  S.  109)  or  in  annexed  territory  under  mili- 
tary government.  (Cross  v.  Harrison,  16  How.  164;  Magoon,  Reports,  pp. 
16,  30.)  Such  presidential  courts  may  exercise  local  jurisdiction  but  may 
not  be  given  an  admiralty  and  prize  jurisdiction.  (Jecker  v.  Montgomery, 
13   How.  498.) 

00  Cushing,  Att.  Gen.,  8  Op.  390,  1857.  See  also  the  Konigin  Luise,  184 
Fed.  170  (1910),  and  Wright,  Am.  Jl.  Int.  Law,  12:  71. 

"^  Infra,  sec.  53. 

®^  Dillon's  case,  supra,  sec.  46. 


SEPARATION  OF  POWERS.  117 

in  consular  and  other  courts  it  establishes,  as  they  do  not  exercise 
the  "  judicial  power  of  the  United  States."  "^ 

Treaties  cannot  vest  courts  exercising  "  the  judicial  power  of 
the  United  States "  with  non-judicial  functions.^""  Thus  doubt 
has  been  expressed  whether  treaties  could  provide  for  appeal  from 
federal  courts  to  an  international  tribunal,  since  with  such  a  review 
by  an  authority  not  exercising  "  the  judicial  power  of  the  United 
States  "  the  original  hearing  by  the  federal  court  would  be  rendered 
non-judicial  in  character.  Such  an  international  tribunal  could 
not  be  endowed  by  Congress  with  the  '*  judicial  power  of  the 
United  States "  since  its  judges  could  not  be  assured  the  security 
of  tenure  and  compensation  required  of  courts  exercising  that 
power  and  the  Supreme  Court  has  expressly  held  that  courts 
established  by  Congress  in  the  territories  and  courts  established 
abroad  or  in  the  United  States  by  treaty  do  not  exercise  that 
power.^"^  In  the  case  of  Gordon  v.  United  States  the  Supreme 
Court  refused  to  hear  appeals  from  the  Court  of  Claims  which 
would  subsequently  be  reviewable  by  the  Secretary  of  the  Treasury, 
saying :  ^"^ 

"  The  Supreme  Court's  jurisdiction  and  powers  and  duties  being  defined  in 
the  organic  law  of  the  government,  and  being  all  strictly  judicial,  Congress 
cannot  require  or  authorize  the  court  to  exercise  any  other  jurisdiction  or 
power,  or  perform  any  other  duty.  .  .  .  The  award  of  execution  is  a  part', 
and  an  essential  part,  of  every  judgment  passed  by  a  court  exercising 
judicial  power.  It  is  no  judgment  in  the  legal  sense  of  the  term,  without  it. 
Without  such  an  award  judgment  would  be  inoperative  and  nugatory,  leav- 
ing the  aggrieved  party  without  a  remedy.  .  .  .  Such  is  not  the  judicial  power 
confided  to  this  court,  in  the  exercise  of  it's  appellate  jurisdiction;  yet  it  is  the 
whole  power  that  the  court  is  allowed  to  exercise  under  this  act  of  Congress." 

The  XII  Hague  Convention  of  1907  proposed  an  International  Prize 
Court  with  appellate  jurisdiction  in  prize  cases.  Doubts  as  to  its 
constitutionality  were  felt  by  Secretary  Root,  on  the  grounds  of 
this  case,  and  he  instructed  the  American  delegation  to  the  London 
Naval  Conference   (designed  to  codify  the  law  for  this  court)   to 


^^  Supra,  note  95. 

100  Supra,  sec.  55. 

101  Supra,  note  95. 

102  Gordon  v.  U.  S.,  117  U.  S.  697. 


118     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

propose  a  supplementary  protocol,  whereby,  instead  of  subjecting 
decisions  of  the  United  States  courts  to  appeal  and  possible  re- 
versal in  the  International  Prize  Court,  a  direct  claim  might  be 
brought  there  against  the  United  States  "  in  the  form  of  an  action 
in  damages  for  the  injury  caused  by  the  capture."  ^"^  This  sug- 
gestion was  adopted  by  the  Naval  Conference  in  a  final  protocol^"* 
and  was  ultimately  incorporated  in  a  protocol  signed  by  all  signa- 
tories of  the  original  Prize  Court  Convention."*^ 

"  The  (American)  delegation  remarked  that  for  certain  states  the  func- 
tioning of  the  International  Prize  Court  is  not  compatible  with  that  of  the 
Constitution.  The  decision  of  national  courts  cannot  be  annulled  by  for- 
eign decisions  in  certain  countries,  such  as  the  United  States  of  America. 
Recourse  to  the  Prize  Court  might  have  that  effect  of  annulling  a  decision 
of  the  Supreme  Court  of  the  United  States  of  America,  a  result  incom- 
patible with  their  Constitution."  1"^ 

The  option  permitted  by  the  protocol  would  eliminate  this  possibility. 
It  seems  probable  that  the  difficulty  might  have  been  equally  met 
by  domestic  legislation  providing  special  courts  for  the  original 
hearing  of  Prize  Cases. 

"  Congress,"  said  the  Supreme  Court  in  the  Gordon  Case,  "  may  un- 
doubtedly establish  tribunals  with  special  powers  to  examine  testimony  and 
decide,  in  the  first  instance,  upon  the  validity  and  justice  of  any  claim 
for  money  against  the  United  States,  subject  to  the  supervision  and  control 
of  Congress,  or  a  head  of  any  of  the  executive  departments."  ^"^ 

The  establishment  of  such  special  tribunals  not  exercising  the 
judicial  power  of  the  United  States  would,  however,  be  a  cumber- 
some process  if  applied  merely  to  prize  courts  and  would  become 
impracticable  if  appeal  to  an  international  tribunal  were  provided 
in  all  cases  involving  international  law  or  treaty. 

^°3  U.  S.  For.  Rel.,  1909,  p.  303. 

'^^*Ibid.,  p.  318;  Report  of  U.  S.  delegates.  Ibid.,  p.  305,  and  President 
Taft's  message,  Dec.  6,  1910,  Ibid.,  1910,  p.  viii. 

lOB  Charles,  Treaties,  p.  263.  Neither  the  Protocol  nor  the  original  con- 
vention has  been  ratified  though  ratification  was  advised  by  the  Senate,  Feb. 

IS,  1911. 

106  Proceedings,  London  Naval  Conference,  British  Par.  Pap.  Misc.  No. 
5  (1909),  P-  222.     See  American  statement.  Ibid.,  p.  216. 

107  Gordon  7-.  U.  S.,  117  U.  S.  697. 


SEPARATION  OF  POWERS.  119 

65.  Limitations  Derived  from  Powers  of  the  President. 

A  treaty  may  delegate  ministerial  powers  within  the  United 
States  but  it  may  not  deprive  the  President  of  rights,  privileges, 
or  powers  inherent  or  expressly  granted  by  the  Constitution.  Some 
of  the  proposed  Senate  reservations  to  the  Treaty  of  Versailles 
seemed  to  be  unconstitutional  as  in  certain  circumstances  they  would 
deprive  the  President  of  his  veto,"^  of  his  power  to  direct  the  move- 
ment of  troops, ^"^  of  his  power  to  conduct  foreign  negotiations  in 
person  or  through  agents""  and  of  his  power  to  make  interim 
appointments.^ 


Ill 


108 "  Notice  of  withdrawal  by  the  United  States  (from  the  League  of 
Nations)  may  be  given  by  concurrent  resolution  of  the  Congress  of  the 
United  States,"  i.e.,  by  a  resolution  not  submitted  to  the  President.  Lodge 
Reservations,  No.  i.     See  Wright,  Col.  Law  Rev.,  20:  128,  and  supra,  sec.  62. 

10^  "  Congress  .  .  .  under  the  Constitution,  has  the  sole  power  to  declare 
war  or  authorize  the  employment  of  the  military  or  naval  forces  of  the 
United  States."  Lodge  Reservations,  No.  2.  "  The  President  is  made 
Commander-in-Chief  of  the  army  and  navy  by  the  Constitution,  evidently  for 
the  purpose  of  enabling  him  to  defend  the  country  against  invasion,  t'o 
suppress  insurrection,  and  to  take  care  that  the  laws  be  faithfully  executed. 
If  Congress  were  to  attempt  to  prevent'  his  use  of  the  army  for  any  of 
these  purposes,  the  action  would  be  void."  Taft,  Our  Chief  Magistrate,  pp. 
128-129.     See  also  Wright,  Col.  Law  Rev.,  20:   134-136. 

ii<' "  Until  such  participation  and  appointment  have  been  so  provided  for 
(i.e.,  by  act  of  Congress)  and  the  powers  and  duties  of  such  representatives 
have  been  defined  by  law,  no  person  shall  represent  the  United  States  under 
either  said  League  of  Nations  or  the  treaty  of  peace  with  Germany  or  be 
authorized  to  perform  any  act  for  or  on  behalf  of  the  United  States  there- 
under." Lodge  Reservation  No.  7.  This  was  somewhat  modified  in  the 
reservations  as  voted  on  March  19,  1920.  With  reference  to  the  independent 
powers  of  the  President,  the  Senate  Foreign  Relations  Committee  reported 
in  1894 :  "  Many  precedents  could  be  noted  to  show  that  such  power  has 
been  exercised  by  the  President  on  various  occasions  without  dissent'  on  the 
part  of  Congress.  These  precedents  also  show  that  the  Senate  of  the  United 
States,  though  in  session,  need  not  be  consulted  as  to  the  appointment  of 
such  agents."  (Cong.  Rec,  2d  Sess.,  p.  127,  quoted  Corwin,  op.  cit.,  p.  64.) 
See  also  Wright,  Col.  Law  Rev.,  20:  136-137. 

m  "  No  citizen  of  the  United  States  shall  be  selected  or  appointed  as  a 
member  of  said  commissions,  committees,  tribunals,  courts,  councils  or 
conferences  except  with  the  approval  of  the  Senate  of  the  U.  S."  Lodge 
Reservation  No.  7  but  eliminated  in  revision  voted  on  March  19,  1920. 
This  conflicts  with  the  constitutional  provision :    "  Th?  President  shall  have 


120     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

The  manner  in  which  the  power  to  make  treaties  must  be 
exercised  in  the  United  States  does  not  affect  the  power  of  the 
national  government  as  a  whole  to  make  international  agreements. 
The  distribution  of  power  in  making  treaties  between  the  President 
and  the  Senate  will  be  considered  in  a  later  chapter."^  Suffice  it 
to  say  here,  that  controversy  has  arisen  over  the  power  of  the 
President  to  negotiate  treaties  by  agents  to  whose  appointment  the 
Senate  has  not  consented,  to  make  executive  agreements  without 
Senate  consent,  and  to  ignore  directions  of  Congress  in  negotiation 
and  treaty  making. 

C.  Effect  on  Power  to  Make  National  Decisions. 
66.  Alleged  Encroachments. 

The  doctrine  of  separation  of  powers  does  not  limit  the  power 
of  the  United  States  to  make  national  decisions  on  international 
questions.  It  does,  however,  limit  the  power  of  particular  organs 
to  make  such  decisions.  The  details  of  this  distribution  of  power 
will  be  considered  in  a  later  chapter.^^^  A  few  of  the  contro- 
versies which  have  arisen  may  be  suggested  here. 

Congressional  resolutions  recognizing  foreign  states  or  govern- 
ments, expressing  national  sentiment  or  policy,  directing  the  Pres- 
ident in  foreign  policy,  or  ordering  the  detailed  movement  of  troops, 
have  been  alleged  to  encroach  upon  the  President's  exclusive  power 
in  these  matters. 

Congressional  delegations  of  power  to  the  President  to  decide 
when  the  conditions,  previsioned  by  statutes,  actually  exist,  and 
upon  such  decision  to  put  legislative  policies  into  efifect  by  proclama- 
tion have  been  questioned. 

Presidential  proclamations  of  neutrality  and  war,  and  confisca- 
tion orders  in  time  of  war,  have  been  questioned  as  encroachments 
upon  the  powers  of  Congress. 

Finally,  judicial  decisions  on  political  questions  have  been  alleged 
to  encroach  upon  the  powers  of  the  President  and  Congress. 

power  to  fill  up  all  vacancies  that  may  happen  during  the  recess  of  the 
Senate,  by  granting  commissions  which  shall  expire  at  the  end  of  their  next 
session."     II,  sec.  2,  cl.  3.     See  Wright,  Col.  law  Rev.,  20:   138. 

^'^  Infra,  chap.  XIV. 

^^^  Infra,  chap.  XV. 


CHAPTER  VIII. 

Conclusion  on  Constitutional  Limitations. 

67.  Traditional  Statements  of  Limitations  upon  the  Treaty  Power. 

As  we  have  seen,  limitations  upon  the  power  of  national  organs 
are  of  three  kinds,  in  defense  of  the  rights  and  privileges  of  individ- 
uals, the  rights  and  privileges  of  the  states,  and  the  rights,  privi- 
leges and  powers  of  the  organs  of  the  national  government.  The 
observance  of  these  limitations  is  considered  essential  to  the  preser- 
vation respectively  of  individual  liberty,  the  autonomy  of  the  states, 
and  the  separation  of  powers. 

These  three  types  of  limitations  are  expressed  in  the  classic 
statement  of  Justice  Field  in  reference  to  the  treaty  power  :^ 

"  The  treaty  power,  as  expressed  in  the  Constitution,  is  in  terms  un- 
limited except  by  those  restraints  which  are  found  in  that  instrument  against 
the  action  of  the  government  or  of  its  departments,  and  those  arising  from 
the  nature  of  the  government  and  of  that  of  the  States.  It  would  not  be 
contended  that  it  extends  so  far  as  to  authorize  what  the  Constitution 
forbids,  or  a  change  in  the  character  of  the  government  or  in  that  of  one 
of  the  States,  or  a  cession  of  any  portion  of  the  territory  of  the  latter, 
without  its  consent.  Fort  Leavenworth  Railroad  Co.  v.  Lowe,  114  U.  S. 
525,  54L  But  with  these  exceptions,  it  is  not  perceived  that'  there  is  any 
limit  to  the  questions  which  can  be  adjusted  touching  any  matter  which  is 
properly  the  subject  of  negotiation  with  a  foreign  country.  Ware  v. 
Hylt'on,  3  Dall.  199;  Chirac  z:  Chirac,  2  Wheat.  259;  Hauenstein  v.  Lynham, 
100  U.  S.  483;  8  Opinions  Attys.  Gen.  417;  People  v.  Gerke,  5  California 
38r." 

Jefferson  and  Calhoun  each  attempted  to  define  the  limits  of  the 
treaty  power  in  well-known  statements.     Calhoun  wrote :  ^ 

"It  (the  treaty-making  power)  is  .  .  .  limited  by  all  the  provisions  of 
the  Constitution  which  inhibit  certain  acts  from  being  done  by  the  govern- 
ment, or  any  of  its  departments ;  of  which  description  there  are  many.  It 
is  also  limited  by  such  provisions  of  the  Constitution  as  direct  certain  acts  to 

1  Geofroy  v.  Riggs,  133  U.  S.  258,  267  (1890). 

2  Calhoun,  Discourse  on  Constitutional  Government  of  U.  S.,  Works,  I : 
203 ;    Moore,   Digest,   5 :    166. 

121 


122     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

be  done  in  a  particular  way,  and  which  prohibit  the  contrary,  of  which  a 
striking  example  is  to  be  found  in  that  which  declares  that  no  money  shall 
be  drawn  from  the  Treasury  but  in  consequence  of  appropriations  to  be  made 
by  law.  This  not  only  imposes  an  important  restriction  on  the  power, 
but  gives  to  Congress  as  the  law-making  power,  and  to  the  House  of  Rep- 
resentatives as  a  portion  of  Congress,  the  right  to  withhold  appropriations; 
and  thereby,  an  important  control  over  the  treaty-making  power,  whenever 
money  is  required  to  carry  a  treaty  into  effect ;  which  is  usually  the  case, 
especially  in  reference  to  those  of  much  importance.  There  still  remains 
another,  and  more  important  limitation,  but  of  a  more  general  and  indefinite 
character.  It  can  enter  into  no  stipulation  calculated  to  change  the  char- 
acter of  the  government ;  or  to  do  that  which  can  only  be  done  by  the 
constitution-making  power;  or  which  is  inconsistent  with  the  nature  and 
structure  of  the  government." 

This  seems  to  follow  the  recognized  view.  It  should  be  noticed, 
however,  that  while,  under  constitutional  law  (though  not  under 
international  law).  Congress  has  the  right  to  withhold  appropria- 
tions, yet  by  constitutional  understandings^  it  ought  not  to  do  so. 
Thus  though  a  treaty  could  not  vest  the  power  to  make  appropria- 
tions in  any  organ  other  than  Congress,  yet,  the  fact  that  a  treaty 
requires  an  appropriation  does  not  impeach  the  validity  of  a  treaty, 
as  Calhoun  himself  clearly  stated  while  Secretary  of  State :  ^ 

"  The  treaty-making  power  has,  indeed,  been  regarded  to  be  so  compre- 
hensive as  to  embrace,  with  few  exceptions,  all  questions  that  can  possibly 
arise  between  us  and  other  nations,  and  which  can  only  be  adjusted  by 
their  mutual  consent,  whether  the  subject  matter  be  comprised  among  the 
delegated  or  the  reserved  powers.  So  far,  indeed,  is  it  from  being  true, 
as  the  report  supposed,  that  the  mere  fact  of  a  power  being  delegated  to 
Congress  excludes  it  from  being  the  subject  of  treaty  stipulations;  that  even 
its  exclusive  delegation,  if  we  may  judge  from  the  habitual  practice  of  the 
government,  does  not — of  which  the  power  of  appropriating  money  affords 
a  striking  example.  It  is  expressly  and  exclusively  delegated  to  Congress, 
and  yet  scarcely  a  treaty  has  been  made  of  any  importance  which  does  not 
stipulate  for  the  payment  of  money.  No  objection  has  ever  been  made  on 
this  account.  The  only  question  ever  raised  in  reference  to  it  is,  whether 
Congress  has  not  unlimited  discretion  to  grant  or  withhold  the  appro- 
priation." 

8  Infra,  sec.  256. 

*  Mr.    Calhoun,    Sec.    of    State,   to    Mr.    Wheaton,    Minister    to    Prussia, 
June  28,   1844,  Moore,  Digest,  5 :   164.     See  also  infra,  sec.  59. 


CONSTITUTIONAL  LIMITATIONS.  123 

Jefferson  wrote  in  his  Manual  of  Parliamentary  Practice :  ^ 

"  To  what  subjects  this  power  extends,  has  not  been  defined  in  detail 
by  the  Constitution,  nor  are  we  entirely  agreed  among  ourselves.  (i) 
It  is  admitted  that  it  must  concern  the  foreign  nation,  party  to  the  contract, 
or  it  would  be  a  mere  nulHty.  res  inter  alios  acta.  (2)  By  the  general 
power  to  make  treaties,  the  Constitution  must  have  intended  to  comprehend 
only  those  objects  which  are  usually  regulated  by  treaty  and  cannot  be 
otherwise  regulated.  (3)  It  must  have  meant  to  except  out  of  these  the 
rights  reserved  to  the  states;  for  surely  the  President  and  Senate  cannot  do 
by  treaty  what  the  whole  government  is  interdicted  from  doing  in  any  way. 
(4)  And  also  to  except  those  subjects  of  legislation  in  which  it  gave  a  par- 
ticipation to  the  House  of  Representatives.  This  last  exception  is  denied  by 
some,  on  the  ground  that  it  would  leave  very  little  matter  for  the  treaty 
power  to  work  on.    The  less  the  better,  say  others." 

This -statement  is  both  erroneous  and  incomplete,  it  seems,  there- 
fore, unfortunate  that  it  should  be  reprinted  in  both  Senate  and 
House  manuals  without  explanatory  comment.®  It  does  not  state 
all  of  the  limitations  which  actually  exist  and  the  last  two  limitations 
stated  do  not  exist.  The  last  is  effectively  refuted  by  the  state- 
ment quoted  from  Calhoun.  The  third  is  thus  dealt  with  by 
Attorney  General  Griggs :  '^ 

"  The  regulation  of  fisheries  in  navigable  waters  within  the  territorial 
limits  of  the  several  States  is,  in  the  absence  of  a  treaty,  a  subject  of  State 
rather  than  of  Federal  jurisdiction ;  but  the  government  of  the  United  States 
has  power  to  enter  into  treaty  stipulations  on  the  subject,  e.g.,  with  Great 
Britain,  for  the  regulation  of  the  fisheries  in  the  waters  of  the  United 
States  and  Canada  along  the  international  boundary;  and  the  fact  that  a 
treaty  provision  would  annul  and  supersede  a  particular  State  law  on  the 
subject  would  be  no  objection  to  the  validity  of  the  treaty." 

The  limitation  referred  to  last  by  Justice  Field  and  first  and  sec- 
ond by  Jefferson  applies  to  the  exercise  of  all  powers  in  the  field  of 
foreign  relations.  They  must  be  bona  fide  directed  toward  the 
conduct  of  international  relations.  Thus  a  purported  declaration 
of  war,  really  designed  to  excuse  an  invasion  of  the  residual  powers 
of  the  states,  would  doubtless  be  void ;  though  it  might  be  difficult 
to  discover  a  court  with  sufficient  temerity  to  declare  it  so,  if  con- 


5  Art.  52,  Moore,  Digest,  5  :  162. 

8  Senate,  Manual,  1913,  p.  149;  Rules  of  H.  of  R.,  1914,  sec.  587,  p.  252. 
7  Griggs,  Att.  Gen.,  22  Op.  214  (1898),  Moore,  Digest,  5:  161-162.     See 
also  supra,  sec.  50. 


124     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

stitutional  government  had  so  lapsed  in  vigilance  as  to  present  the 
opportunity.  Such  acts  can  only  be  prevented  by  operation  of  the 
political  checks  upon  government.* 

68.  Most  Limitations  Unimportant  in  Practice. 

Although  in  theory  constitutional  limitations  apply  to  the  organs 
of  government  in  the  conduct  of  foreign  relations,  as  well  as 
domestic  affairs,  yet  in  practice  it  is  discovered  that  many  limita- 
tions, especially  those  for  the  protection  of  individual  and  states' 
rights,  are  applicable  only  within  American  territory  and  hence 
do  not  limit  the  exterritorial  action  of  national  organs.^  Further- 
more, even  when  limitations  are  legally  applicable,  their  enforce- 
ment is  apt  to  belong  to  the  political  departments  of  government 
because  of  the  disinclination  of  the  courts  to  pass  on  "political 
questions,"  ^^  Obviously  the  political  departments  are  more  likely 
to  err  on  the  side  of  an  efficient  exercise  of  national  power  than  on 
the  side  of  an  excessive  regard  for  constitutional  limitations. 
Finally,  even  when  such  cases  do  come  before  the  courts,  they 
show  an  unquestionable  tendency  to  interpret  limitations  less  rigor- 
ously where  foreign  affairs  are  involved."  "  In  the  exercise  of 
its  international  and  military  power,"  says  Freund,  "  the  state  is 
freed  from  many  of  the  restraints  under  which  it  must  conduct  the 
peaceful  government  of  its  own  citizens."  ^^  Though  this  can 
hardly  be  accepted  in  constitutional  theory,  except  as  explained 
above,  undoubtedly,  it  is  true  in  fact,"  and  for  reasons  thus  ex- 
plained by  Hamilton :  ^* 

"  As  the  duties  of  superintending  the  national  defense  and  of  securing 
the  public  peace  against  foreign  or  domestic  violence  involve  a  provision  for 
casualties  and  dangers  to  which  no  possible  limits  can  be  assigned,  the  power 

*  Willoughby,  op.  cit.,  p.  504 ;  Corwin,  National  Supremacy,  pp.  302-308. 

^  In  re  Ross,  140  U.  S.  453. 

"  Foster  v.  Neilson,  2  Pet.  253 ;  The  Prize  Case,  2  Black  635 ;  Texas  v. 
White,  7  Wall.  700,  Infra,  sec.  107. 

"  Dillon's  case,  7  Sawyer  561,  Fed.  Cas.  No.  3914  (1854)  ;  Moore,  Digest, 
5:  79;  Supra,  sec.  46. 

12  Freund,  The  Police  Power,  Chicago,  1904,  p.  4. 

"  Note  the  long  leash  given  to  the  military  power  during  the  Civil  War 
as  compared  with  the  law  as  subsequently  stated  in  Ex  Parte  Milligan,  4 
Wall.  2;  Rhodes,  History  of  U.  S.,  4:  248  et  scq. 

"The  Federalist,  No.  31,  Ford  ed.,  p.   194. 


CONSTITUTIONAL  LIMITATIONS.  125 

of  making  that  provision  ought  to  know  no  other  bounds  than  the  exigencies 
of  the  nation  and  the  resources  of  the  community." 

69.  Important  Limitations  from  Separation  of  Powers. 

In  fact  the  only  important  legal  limitation  upon  the  foreign 
relations  power  seems  to  be  that,  resulting  from  the  doctrine  of 
separation  of  powers,  that  all  acts  must  be  performed  by  the  organ 
designated  for  that  purpose  by  the  Constitution.  With  a  proper 
application  of  the  understandings  of  the  Constitution  this  limita- 
tion does  not  interfere  with  an  adequate  meeting  of  international 
responsibilities  and  carrying  out  of  national  policies  except  in  one 
case.  This  is  where  the  achievement  of  these  ends  requires  that 
powers  be  vested  in  an  international  body  created  by  treaty.  As 
we  have  seen  there  is  no  difficulty  in  vesting  such  a  body  with  au- 
thority to  decide  on  questions  of  fact  and  law  since  the  treaty 
power,  or  the  treaty  power  supplemented  by  congressional  legisla- 
tion have  been  held  fully  competent  to  create  agencies  for  these 
purposes.^^  A  difficulty  might  arise,  in  case  such  a  body  were 
given  appellate  jurisdiction  over  the  Supreme  Court  but  this  could 
be  eliminated  either  by  treaty  provision  for  starting  original  action 
in  the  international  tribunal  or,  in  certain  cases,  by  congressional 
provision  for  special  tribunals  within  the  United  States,  not  exer- 
cising the  judicial  power  of  the  United  States,  for  the  original 
hearing,  from  which  appeal  might  be  taken  to  the  international 
court.^' 

A  delegation  of  political  power,  that  is  legislative  or  treaty-mak- 
ing power,  to  such  a  body  would  be  unconstitutional,  but  this  never 
seems  to  have  been  contemplated.  Bodies  such  as  the  Assembly 
and  Council  of  the  League  of  Nations,  in  which  all  binding  political 
decisions  require  the  assent  of  the  American  representative,  would 
not  violate  this  principle,  since  the  American  representative  would 
presumably  be  instructed  to  withhold  his  consent  or  give  merely 
tentative  consent  in  any  matter  within  the  exclusive  competence 
of  Congress  or  the  treaty-making  power  until  those  organs  had 
acted. ^^ 


15  Supra,  sec.  60,  note  42 ;  infra,  sees.  225-227. 
1^  Supra,  sec.  64. 
1^  Supra,  sec.  63. 


126     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

A  too  rigid  application  of  the  doctrine  of  separation  of  powers 
will  inevitably  produce  friction  between  the  departments  and  impair 
the  ability  of  the  government  rapidly  and  efficiently  to  meet  inter- 
national responsibilities  and  to  decide  upon  and  carry  out  national 
policies.  This  difficulty  may  be  greatly  reduced  through  the  regular 
observance  by  each  organ  of  certain  constitutional  understandings, 
directing  the  method  by  which  discretionary  power  ought  to  be 
exercised.  Thus  before  making  a  decision  each  independent  organ 
ought  to  consider  the  views  of  other  independent  organs  whose 
cooperation  will  be  necessary  in  order  to  carry  out  such  decision ; 
and  after  a  decision  has  been  made  by  any  organ  acting  within  its 
constitutional  powers,  all  other  independent  organs  ought  to  con- 
sider themselves  bound  to  so  exercise  their  powers  as  to  give  that 
decision  full  eflfect.  The  development  of  and  adhesion  to  these 
understandings  is  most  essential  if  foreign  relations  are  to  be  carried 
on  effectively  by  a  government  guaranteeing  the  separation  of 
powers  by  its  fundamental  law.^* 

18  Infra,  sec.  249. 


PART  IV. 

The  Power  to  Conduct  Foreign  Relations  under 
THE  Constitution. 


CHAPTER  IX. 

The  Position  of  the  Foreign  Relations  Power  in  the 
Constitutional  System. 

A.  Source  of  National  Powers. 

70.  Distribution  of  Powers  Between  States  and  National  Govern- 
ment. 

The  Constitution  establishes  a  federal  government,  certain 
powers  being  expressly  or  impliedly  delegated  to  the  national  gov- 
ernment, the  rest,  unless  prohibited  to  the  states,  being  reserved  to 
the  states  respectively  or  to  the  people.  Now  the  control  of  foreign 
affairs  has  been  very  largely  vested  in  the  national  government. 
Its  organs  are  given  power  to  send  and  receive  diplomatic  officers, 
to  make  treaties,  to  grant  letters  of  marque  and  reprisal,  to  declare 
and  conduct  war,  to  assume  jurisdiction  in  cases  involving  for- 
eign diplomatic  officers,  foreign  states  or  the  interpretation  of 
treaties,  to  pass  laws  relating  to  foreign  commerce,  naturalization, 
piracies  and  offences  against  the  law  of  nations  and  any  other  laws 
that  may  be  necessary  and  proper  for  carrying  any  of  these  powers 
into  execution. 

On  the  other  hand,  the  states  are  expressly  forbidden  to  enter 
into  any  treaty,  alliance,  or  confederation  or,  unless  Congress 
consent,  into  any  agreement  or  compact  with  a  foreign  power;  to 
grant  letters  of  marque  and  reprisal  or  without  the  consent  of 
Congress  to  engage  in  war  unless  invaded  or  in  imminent  danger 
thereof ;  to  lay  tonnage,  import  or  export  duties,  except  for  execut- 
ing their  inspection  laws.  The  only  powers  connected  with  foreign 
relations  which  the  states  seem  competent  to  exercise  without  con- 
gressional consent  relate  to  the  meeting  of  international  responsi- 
bilities. The  states  have  power  to  provide  aliens  within  their 
borders  the  protection  and  to  assure  them  the  other  rights,  guaran- 
teed by  international  law  and  treaty,  and  state  judges  are  ex- 
pressly enjoined  to  observe  treaties  as  the  supreme  law  of  the  land, 

129 


130     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

anything  in  the  state  constitution  or  laws  to  the  contrary  notwith- 
standing. Full  power  to  enforce  treaties  and  international  law 
within  the  state  could  doubtless  be  conferred  upon  national  officers 
and  courts  by  act  of  Congress  under  the  necessary  and  proper 
clause,  but  the  legislation  at  present  in  force  is  not  complete  and 
state  authorities  alone  must  be  relied  on  to  meet  certain  international 
responsibilities. 

71.  Theory  of  Sovereign  Powers  in  National  Government. 

In  view  of  the  almost  complete  prohibition  of  the  states  from 
the  control  of  foreign  relations,  it  has  been  argued  that  the  national 
government  must  necessarily  have  all  powers  in  this  field  enjoyed 
by  sovereign  nations.  Thus  said  Justice  Field  in  the  Chinese  Ex- 
clusion Cases  :^ 

"  While  under  our  Constitution  and  form  of  government  the  great  mass 
of  local  matters  is  controlled  by  local  authorities,  the  United  States,  in  their 
relation  to  foreign  countries  and  their  subjects  or  citizens,  are  one  nation, 
invested  with  powers  which  belong  to  independent  nations,  the  exercise 
of  which  can  be  invoked  for  the  maintenance  of  its  absolute  independence 
and  security  throughout  its  entire  territory." 

Justice  Gray  repeated  the  theory  in  Fong  Yue  Ting  v.  United 
States : ^ 

"  The  United  States  are  a  sovereign  and  independent  nation,  and  are  in- 
vested by  the  Constitution  with  the  entire  control  of  international  relations, 
and  with  all  the  powers  of  government  necessary  to  maintain  that  control 
and  to  make  it  effective." 

Aside  from  the  power  to  exclude  aliens,  the  court  has  derived  the 
power  to  acquire  territory  from  this  theory,^  but  in  other  cases  the 
latter  power  has  been  implied  from  the  power  to  make  treaties, 
and  to  declare  war.* 


1  Chinese  Exclusion  Cases,  130  U.  S.  581. 

2  Fong  Yue  Ting  v.  U.  S.,  149  U.  S.  698. 

3  Jones  V.  U.  S.,  137  U.  S.  202,  and  discussion  by  Willoughby,  op.  cit., 
p.  340.     See  also  cases  cited,  Ibid.,  pp.  454-455. 

*  American  Insurance  Co.  v.  Canter,  i  Pet.  511;  Flemming  v.  Page,  9 
How.  603 ;  Willoughby,  op.  cit.,  p.  339.  The  power  to  admit  new  states  to 
the  Union  has  also  been  suggested  as  a  ground  for  annexation,  though  such 
an  interpretation  of  the  clause    (Constitution,   IV,   sec.   3,   cl.   i)    was  not 


iTHE  FOREIGN  RELATIONS  POWER.  131 

The  general  theory  of  national  powers  derived  from  sover- 
eignty has  not  been  approved  by  commentators^  or  by  the  weight  of 
judicial  decisions.  Thus  in  Kansas  v.  Colorado  Justice  Brewer 
emphatically  repudiated  the  "  doctrine  of  sovereign  and  inherent 
powers."  ^ 

"  But,"  he  said,  "  the  proposition  that  there  are  legislative  powers 
affecting  the  nation  as  a  whole  which  belong  to,  although  not  expressed  in 
the  grant  of  powers,  is  in  direct  conflict  with  the  doctrine  that  this  is  a 
government  of  enumerated  powers.  That  this  is  such  a  government  clearly 
appears  from  the  Constitution,  independently  of  the  amendments,  for  other- 
wise there  would  be  an  instrument  granting  certain  specified  things  made 
operative  to  grant  other  and  distinct  things.  This  natural  construction  of 
the  original  body  of  the  Constitution  is  made  absolutely  certain  by  the 
Tenth    Amendment." 

Chief  Justice  Taney  had  earlier  insisted  that  no  argument  could 
be  drawn  "  from  the  nature  of  sovereignty,  or  the  necessities  of 
government   for  self-defense  in  time  of  tumult  and  danger."  "^ 

72.  Theory  of  National  Sovereignty  in  Foreign  Relations. 

But   though   the   general    theory    of    sovereign   powers,   which 

would  vest  in  the  national  government  all  powers  not  expressly 

prohibited,  cannot  be  maintained,   more  support  can  be  cited   for 

the  theory  if   confined  to  the  control  of   foreign   relations.     Thus 

W'illoughby  says : 

"  From  these  express  grants  of  power  to  the  General  Government,  and 
prohibitions   of   treaty   powers   to   the    States,   the    intention    of   the   framers 


intended  by  the  drafter  of  the  Constitution.  See  letter  of  Gouverneur  Mor- 
ris to  Livingston,  1803,  Life  and  Writings  (Sparks),  3:  192,  quoted  in  Wil- 
loughby,  op.  cit.,  p.  328. 

5  Willoughby,  op.  cit.,  p.  69,  who,  however,  approves  a  limited  applica- 
tion of  the  theory  in  respect  to  foreign  relations.  Ibid.,  p.  45.  "  It  cannot, 
therefore,  be  maintained  that,  merely  because  the  United  States  is  classed 
as  a  '  sovereign  nation,'  the  government  or  any  part  of  it  can  therefore  per- 
form a  sovereign  act  beyond  the  scope  of  the  purposes  for  which  it  was 
created,  for  although  the  nation  is  sovereign  the  Government  is  not.  Com- 
plete sovereignty  resides  in  the  people  as  a  whole,  and  not  in  any  or  all  of 
the  public  officers."  D.  J.  Hill,  Present  Problems  of  Foreign  Policy,  N.  Y., 
1919,  p.   15s. 

^  Kansas  v.  Colorado,  206  U.  S.  46. 

^  Ex  Parte  Merryman,  Taney's  reports,  p.  246 ;  Thayer,  Cases  on  Const. 
Law,  2:  2361,  2368. 


132     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

of  the  Constitution  to  invest  the  Federal  Government  with  the  exclusive 
control  of  foreign  aflfairs  is  readily  deducible. 

"  The  control  of  international  relations  vested  in  the  General  Govern- 
ment is  not  only  exclusive  but  all-comprehensive.  That  is  to  say,  the  au- 
thority of  the  United  States  in  its  dealings  with  foreign  powers  includes  not 
only  those  powers  which  the  Constitution  specifically  grants  it,  but  all  those 
powers  which  States  in  general  possess  with  regard  to  matters  of  inter- 
national concern. 

"  This  appeal,  however,  to  the  fact  of  '  national  sovereignty '  as  a  source 
of  federal  power  is  not  a  valid  one  outside  of  the  international  field.  It 
cannot  properly  be  resorted  to  when  recognition  of  an  international  obliga- 
tion on  the  part  of  the  United  States  is  not  involved,  and  when,  therefore, 
the  matter  is  purely  one  relating  to  the  reserved  powers  of  the  States  or  to 
the  private  rights  of  the  individuals.  To  permit  the  doctrine  to  apply  within 
these  fields  would  at  once  render  the  Federal  Government  one  of  unlimited 
powers."  8 

The  writer  is  unable  to  accept  this  doctrine.  The  fact  that  powers 
relating  to  the  control  of  foreign  relations  are  expressly  enumerated 
by  the  Constitution,  which  enumeration  would  be  rendered  super- 
fluous by  the  theory,  the  fact  that  the  states  actually  exercise  some 
powers  which  directly  affect  foreign  relations,  such  as  the  protection 
of  domiciled  aliens,  the  fact  that  certain  constitutional  limitations 
such  as  those  contained  in  the  bill  of  rights  are  generally  acknowl- 
edged to  limit  the  scope  of  treaty-making  and  other  activities  in 
the  control  of  foreign  relations  seem  to  indicate  that  the  national 
foreign  relations  power  is  neither  implied  from  sovereignty,  nor 
exclusive,  nor  all-comprehensive,  though  it  undoubtedly,  very  nearly 
enjoys  the  two  latter  characteristics.  The  writer  is  not  aware  of 
any  judicial  decision  which  requires  the  theory  for  support,  and  he 
considers  that  certain  judicial  dicta,  unquestionably  supporting  it, 
are  overborne  by  the  repeated  assertions  of  the  Supreme  Court 
that  the  national  government  is  a  government  of  delegated  power. 
Consequently  in  the  field  of  foreign  relations  as  in  other  fields  he 
assumes  that  all  national  powers  must  be  founded  upon  express  or 
implied  delegation  by  the  Constitution. 

73.  Theory  of  Resultant  Powers, 

However,  powers  may  be  implied  as  a  "  resultant "  of  a  group 

8  Willoughby,  op.  cit.,  pp.  451,  454.     See  also  Ibid.,  p.  65. 


THE  FOREIGN  RELATIONS  POWER.  133 

of  express  powers — it  is  not  necessary  that  implied  powers  be  traced 

always  to  a  single  express  delegation. 

"It  is  to  be  observed,"  said  Chief  Justice  Marshall,  "that  it  is  not  indis- 
pensable to  the  existence  of  every  power  claimed  for  the  Federal  Government 
that  it  can  be  found  specified  in  the  words  of  the  Constitution,  or  clearly  and 
directly  traceable  to  some  one  of  the  specified  powers.  Its  existence  may  be 
deduced  fairly  from  more  than  one  of  the  substantive  powers  expressly  de- 
fined, or  from  them  all  combined.  It  is  allowable  to  group  together  any 
number  of  them  and  to  infer  from  them  all  that  the  power  claimed  has  been 
conferred."  ^ 

Thus  the  power  to  recognize  foreign  states  and  governments  may 
be  implied  from  the  powers  of  receiving  and  commissioning  diplo- 
matic officers ;  ^°  the  power  to  exclude  and  expel  aliens  may  be 
implied  from  the  powers  of  regulating  foreign  commerce,  natural- 
izing aliens  and  declaring  war;^^  the  power  to  annex  and  govern 
territory  may  be  implied  from  the  power  of  making  treaties,  declar- 
ing war,  and  admitting  new  states  to  the  Union."     We  assume, 


9  Cohens  v.  Va.,  6  Wheat.  264;  U.  S.  v.  Gettysburg  Electric  Ry.  Co.,  160 
U.  S.  668,  681-683  (1896).  See  Willoughby,  op.  cii.,  p.  66,  and  Legal  Tender 
Cases,  12  Wall.  457,  quoted  ibid.,  p.  65. 

10  Corwin,  The  President's  Control  of  Foreign  Relations,  p.  71. 

11  Although  in  the  Chinese  Exclusion  Cases  (130  U.  S.  581,  1889)  and 
Fong  Yue  Ting  v.  U.  S.  (149  U.  S.  698,  1893)  certain  expressions  of  the  court 
support  the  contention  that  the  power  of  exclusion  and  expulsion  are  derived 
from  national  sovereignty  in  foreign  affairs,  yet  it  is  to  be  noted  that  in  both 
of  these  cases  the  court  carefully  enumerated  the  specific  grants  of  power  of 
which  these  so-called  sovereign  powers  are  the  resultant.  The  argument  in 
the  Chinese  Exclusion  Cases,  that  the  power  to  make  war  for  defense  implies 
a  power  to  take  lesser  defensive  measure,  and  that  the  occasion  for  and 
methods  of  such  defense  is  a  political  question  not  subject  to  judicial  deter- 
mination, may  also  be  noticed.  "  It  matters  not  in  what  form  such  aggression 
and  encroachment  come,  whether  from  the  foreign  nation  acting  in  its  national 
character  or  from  vast  hordes  of  its  people  crowding  in  upon  us.  The  gov- 
ernment, possessing  the  powers  which  are  to  be  exercised  for  protection  and 
security,  is  clothed  with  authority  to  determine  the  occasion  on  which  the 
powers  shall  be  called  forth;  and  its  determination,  so  far  as  the  subjects 
affected  are  concerned,  is  necessarily  conclusive  upon  all  its  departments  and 
officers."  Thus  when  the  court  spoke  of  "sovereign  powers"  it  had  in  mind 
powers  resultant  from  a  group  of  express  or  implied  powers,  and  not  powers 
deduced  from  an  abstract  theory  of  sovereignty. 

12  The  case  of  Jones  v.  U.S.  (137  U.  S.  202),  which  is  cited  by  Willoughbv 
as  not  only  practically  upholding  the  right  of  the  United  States  to  acquire 
territory  by  discovery  and  occupation,  but  applying  the  principle,  that    '  the 


lo4     -^HE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

therefore,  that  the  foreign  relations  power  in  common  with  all  other 
national  powers,  exists  only  as  far  as  (i)  expressly  delegated  by 
the  Constitution,  (2)  implied  from  expressly  delegated  powers,  or 
(3)  implied  as  a  "resultant"  from  a  group  of  express  or  implied 
powers.^^ 

B.  Essential  Nature  of  the  Foreign  Relations  Power. 
74.  Controversy  as  to  Nature  of  Foreign  Relations  Power. 

Since  the  beginning  of  the  government  under  the  Constitution 
there  has  been  a  controversy  as  to  the  essential  nature  of  the  for- 


United  States  may  exercise  a  power  not  enumerated  in  the  Constitution,  pro- 
vided it  be  an  international  power  generally  possessed  by  sovereign  states" 
{op.  cit.,  p.  341),  really  turned  on  the  principle  of  "  political  question."  "  Who 
is  the  sovereign,  de  jure  or  de  facto,  of  a  territory  is  not  a  judicial,  but  a 
political,  question,  the  determination  of  which  by  the  legislative  and  executive 
departments  of  any  government  conclusively  binds  the  judges,  as  well  as  all 
other  officers,  citizens,  and  subjects  of  that  government.  This  principle  has 
always  been  upheld  by  this  court,  and  has  been  affirmed  under  a  great  variety 
of  circumstances."  Apparently  the  President's  power  to  recognize  acquisi- 
tions of  territory  by  the  United  States,  through  the  operation  of  international 
law,  flows  from  his  constitutional  position  as  the  representative  organ  of  the 
government.  It  is  to  be  noted  that  he  has  recognized  such  acquisitions  aside 
from  congressional  legislation.  (Moore,  Digest,  i :  555.)  Thus  such  acquisi- 
tions are  made  by  operation  of  international  law.  Recognition  thereof  is  a 
political  function  of  the  President,  and  the  courts  are  bound  by  such  decision. 
The  act  of  Congress  (Act  of  Aug.  18,  1856,  Rev.  Stat.,  sees.  5570-5578)  in- 
volved in  this  case  defines  the  circumstances  under  which  and  the  procedure 
by  which  American  citizens,  discovering  Guano  Islands,  can  benefit  by  the 
rule  of  international  law  and  the  rights  and  degree  of  protection  to  which 
they  are  entitled,  thus  falling  under  the  power  to  govern  territory.  Constitution, 
art.  IV,  sec.  3,  par.  2.     (See  Moore,  Digest,  i  :  556  ct  scq.) 

13  Unquestionably  the  enumerated  powers  relating  to  foreign  affairs,  either 
by  implication  or  combination,  will  permit  Congress  to  pass  practically  any 
laws  properly  within  that  field.  Consequently  in  practice  this  theory  of  con- 
gressional power  differs  little  from  the  theory  asserting  that  congressional 
powers  can  be  deduced  from  national  sovereignty  in  foreign  affairs.  J.  B. 
Moore  in  Proc.  Am.  Phil.  Soc,  Minutes,  60:  xvi,  quoting  Taney,  C.  J.,  in 
Holmes  vs.  Jennison,  14,  Pet.  540;  "all  the  powers  which  relate  to  our  for- 
eign intercourse  are  confided  to  the  general  government."  The  difficulty  of 
the  sovereignty  theory,  however,  lies  in  the  fact  that  a  recognition  of  congres- 
sional sovereignty  in  foreign  affairs  would  seem  to  exempt  Congress  from 
constitutional  limitations  arising  from  individual  rights,  states'  rights  and  the 
separation  of  powers  in  this  field.  "Sovereignty"  is  not  only  plenitude  of 
power,  but  also  absence  of  limitation.     See  supra,  note  5. 


iTHE  FOREIGN  RELATIONS  POWER.  135 

eign  relations  power.  One  school  has  contended  that  such  powers 
are  essentially  executive  and  hence  all  delegations  of  power  to 
Congress  in  this  field  must  be  strictly  construed  while  delegations 
of  power  to  the  President  may  be  liberally  construed.  Some  have 
gone  even  farther  and  in  view  of  the  constitutional  statement  that 
"  The  Executive  power  shall  be  vested  in  a  President  of  the  United 
States  of  America "  have  contended  that  all  foreign  relations 
powers  not  otherwise  expressly  delegated  are  by  this  general  grant 
of  executive  power  vested  in  the  President.  Another  school  has 
taken  the  reverse  view,  supporting  a  liberal  legislative  power  and  a 
narrow  construction  of  executive  powers. 

75.  Foreign  Relations  Power  not  Essentially  Judicial. 

The  courts  have  been  perfectly  clear  that  these  powers  are 
not  of  an  essential  judicial  nature,  and  consequently  have  con- 
sidered themselves  incompetent  to  decide  them.  They  have  usually 
called  them  "  political  questions  "  and  have  accepted  the  decisions  of 
the  political  branches  of  the  government  without  question.^* 
However,  the  political  branches  of  the  government  include  both  the 
legislative  and  executive  branches,  consequently  judicial  opinions 
give  us  little  assistance  in  our  effort  to  determine  whether  these 
powers  are  essentially  legislative  or  essentially  executive. 

y6.  Theory  of  Essentially  Executive  Nature.     Early   Opinion. 

Supporters  of  the  essentially  executive  character  of  foreign  rela- 
tions powers  notice  that  writers  with  whom  the  members  of  the 
federal  convention  w^ere  familiar  such  as  Locke,  Montesquieu,  De 
Lolme  and  Blackstone  appeared  to  classify  the  control  of  foreign 
relations  as  executive.  In  European  countries,  especially  in  Great 
Britain,  the  Chief  Executive  conducted  foreign  relations.  Further- 
more, they  say,  the  debates  in  the  federal  convention  tended  in  this 
direction.  The  treaty-making  power,  vested  in  Congress  under  the 
Confederation,  was  first  given  to  the  Senate  by  the  Convention,  but 
finally  the  President  was  added  and  in  the  ultimate  draft  the  subject 
is  concluded  in  the  section  dealing  with  Executive  power,  indicating 
that  the  Convention  had  become  convinced  of  its  executive  char- 

1*  Infra,  sec.  107, 


136     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

acter.  Washington's  recognition  of  the  new  French  republic  by 
reception  of  Citizen  Genet  upon  his  own  responsibiHty  set  a  prec- 
edent which  has  since  been  followed.  His  proclamation  of  neu- 
trality, when  many  thought  the  French  alliance  treaty  required  war, 
was  loudly  denounced  by  the  Jefifersonian  Republicans,  but  the 
precedent  has  been  invariably  followed  since  when  occasion  has 
arisen  for  proclaiming  neutrality.  This  first  neutrality  proclama- 
tion occasioned  a  lively  pamphlet  debate  between  Hamilton  and 
Madison  under  the  names  of  "  Pacificus "  and  "  Helvidius,"  and 
Hamilton,  who  supported  the  executive  character  of  the  procla- 
mation, won,  if  future  practice  is  to  be  the  judge. ^^ 

"  It  deserves  to  be  remarked,"  he  wrote,  "  that  as  the  participation  of  the 
Senate  in  the  making  of  treaties,  and  the  power  of  the  legislature  to  declare 
war,  are  exceptions  out  of  the  general  '  executive  power '  vested  in  the  Presi- 
dent, they  are  to  be  construed  strictly,  and  ought  to  be  extended  no  further 
than  is  essential  to  their  execution.  While,  therefore,  the  legislature  can  alone 
declare  war,  can  alone  actually  transfer  the  nation  from  a  state  of  peace  to 
a  state  of  hostility,  it  belongs  to  the  'executive  power'  to  do  whatever  else 
the  law  of  nations,  cooperating  with  the  treaties,  of  the  country  enjoins  in  the 
intercourse  of  the  United  States  with  foreign  powers." 

yj.  Essentially  Executive  Nature.     Practice. 

Advocates  of  this  theory  notice  that  in  practice  the  President 
alone  has  recognized  foreign  governments  and  states  and  pro- 
claimed neutrality.  He  has  initiated  all  foreign  negotiations  and 
has  held  himself  free  to  ignore  congressional  resolutions  or  acts  on 
the  subject.  He  has  even  authorized  foreign  military  expeditions 
on  his  own  authority  and  has  initiated  all  wars.  He  has  on  his 
own  responsibility  executed  treaties  of  extradition,  guarantee,  and 
intervention.  He  has  made  executive  agreements  terminating  hos- 
tilities, outlining  terms  of  peace,  annexing  territory  and  providing 
for  administration  in  foreign  territory,  and  he  has  denounced 
treaties. 

78.  Essentially  Executive  Nature.     Recent  Opinion. 

A  debate  on  the  extent  of  executive  prerogative  in  foreign  rela- 
tions was  indulged  in  by  Senators  in  1906  on  the  occasion  of  Pres- 
ident Roosevelt's  negotiation  of  the  Algeciras  convention  through 


15 Hamilton,  Works  (Federal  ed.,  Lodge),  4:  443. 


THE  FOREIGN  RELATIONS  POWER.  137 

personal  agents,  whose  appointments  had  not  been  consented  to  by 
the  Senate.  Senator  Spooner  of  Wisconsin  supported  the  Pres- 
ident.^* 

"  From  the  foundation  of  the  Government  it  has  been  conceded  in  practice 
and  in  theory  that  the  Constitution  vests  the  power  of  negotiation  and  the 
various  phases — and  they  are  multifarious — of  the  conduct  of  our  foreign  re- 
lations exclusively  in  the  President.  And,  Mr.  President,  he  does  not  exer- 
cise that  constitutional  power,  nor  can  he  be  made  to  do  it,  under  the  tutelage 
or  guardianship  of  the  Senate  or  of  the  House  or  of  the  Senate  and  House 
combined.  .  .  . 

"  Mr.  President,  I  do  not  stop  at  this  moment  to  cite  authorities  in  sup- 
port of  the  proposition,  that  so  far  as  the  conduct  of  our  foreign  relations  is 
concerned,  excluding  only  the  Senate's  participation  in  the  making  of  treaties, 
the  President  has  the  absolute  and  uncontrolled  and  uncontrollable  au- 
thority. .  .  . 

"We  as  the  Senate,  a  part  of  the  treaty-making  power,  have  no  more 
right  under  the  Constitution  to  invade  the  prerogative  of  the  President  to 
negotiate  treaties,  and  that  is  not  all — the  conduct  of  our  foreign  relations  is 
not  limited  to  the  negotiation  of  treaties — we  have  no  more  right  under  the 
Constitution  to  invade  that  prerogative  than  he  has  to  invade  the  prerogative 
of  legislation.  .  .  . 

"  I  do  not  know  whether  it  will  be  any  'light'  to  the  Senator  from  South 
Carolina,  but  in  Mr.  Jefferson's  opinion  on  the  Powers  of  the  Senate,  a  very 
celebrated  document,  which  he  gave  at  the  request  of  the  President,  this  lan- 
guage was  used :  '  The  transaction  of  business  with  foreign  nations  is  execu- 
tive altogether.  It  belongs,  then,  to  the  head  of  that  department,  except  as  to 
such  portions  of  it  as  are  especially  submitted  to  the  Senate.  Exceptions  are 
to  be  construed  strictly.'" 

79.  Theory  of  Essentially  Legislative  Nature.     Early  Opinion. 

However,  supporters  of  the  essentially  legislative  character  of 
the  foreign  relations  power  are  not  without  ammunition.     Whatever 

16  Cong.  Rec,  Jan.  23,  Feb.  6,  1906,  40:  1417-1421,  2125-2148;  Reinsch, 
Readings  in  Am.  Fed.  Govt.,  81-124;  Corwin,  op.  cit.,  pp.  170,  172,  176,  203. 
Senator  Beveridge  remarked  during  this  debate :  "  Does  not  the  Senator 
(Bacon)  think  that  in  the  natural  division  of  the  powers  of  the  Government 
into  legislative,  executive,  and  judicial  the  treaty-making  power  has  always 
been  considered  an  executive  function,  and  therefore,  if  the  Constitution  had 
been  silent  upon  the  subject  of  treaties,  it  would  have  been  completely  under 
the  President's  control,  under  that  provision  of  the  Constitution  which  con- 
fides in  the  President  executive  power,  and  that  the  section  concerning  trea- 
ties is  merely  a  limitation  upon  that  universal  power?"  Ibid.,  p.  184.  "All 
duties  in  connection  with  foreign  relations  not  otherwise  specified  fall  within 
the  sphere  of  the  executive."  Sen.  Doc.  No.  56,  54th  Cong.,  2d  sess.  See 
also  infra,  sec.  92. 


138     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

may  have  been  the  opinion  of  theoretic  writers  and  the  practice  of 
European  nations,  the  fact  is  undoubted  that  the  first  American 
Government  vested  all  foreign  relations  powers  in  Congress  and  the 
Constitutional  Convention  started  from  the  assumption  that  these 
powers  were  legislative.  The  particular  powers  in  the  field  which 
they  delegated  to  the  President  in  part  or  in  full  may  have  been 
in  view  of  particular  expediencies.  But  the  most  important  for- 
eign relations  powers  were  left  largely  legislative.  The  power  to 
declare  war,  to  define  piracies  and  ofifenses  against  the  law  of 
nations  and  to  regulate  foreign  commerce  are  left  with  Congress 
and  the  power  to  make  treaties  and  to  appoint  ambassadors, 
public  ministers  and  consuls  requires  the  consent  of  the  Senate. 

Furthermore,  whatever  Jefiferson  may  have  said  or  done  at 
other  times,  certainly  he  denounced  Hamilton's  theory  of  the 
essentially  executive  nature  of  the  foreign  relations  power  in  1793 
and  urged  Madison  to  "  take  up  your  pen,  select  the  most  striking 
heresies,  and  cut  him  to  pieces  in  face  of  the  public."  ^'^  Madison 
actually  entered  the  lists  and  wrote,  under  the  name  of  "  Hel- 
vidius  "  :  ^® 

"In  the  general  distribution  of  powers,  we  find  that  of  declaring  war 
expressly  vested  in  the  Congress,  where  every  other  legislative  power  is  de- 
clared to  be  vested;  and  without  any  other  qualifications  than  what  is  common 
to  every  other  legislative  act.  The  constitutional  idea  of  this  power  would 
seem  then  clearly  to  be,  that  it  is  of  a  legislative  and  not  an  executive 
nature.  .  .  . 

"  There  are  sufficient  indications  that  the  power  of  treaties  is  regarded 
by  the  Constitution  as  materially  diff'erent  from  mere  executive  power,  and 
as  having  more  affinity  to  the  legislative  that  to  the  executive  character. 

"One  circumstance  indicating  this  is  the  constitutional  regulation  under 
which  the  Senate  give  their  consent  in  the  case  of  treaties.  In  all  other  cases 
the  consent  of  the  body  is  expressed  by  a  majority  of  voices.  In  this  particu- 
lar case,  a  concurrence  of  two-thirds  at  least  is  made  necessary,  as  a  substi- 
tute or  compensation  for  the  other  branch  of  the  legislature,  which,  on  certain 
occasions,  could  not  be  conveniently  a  party  to  the  transaction. 

"  But  the  conclusive  circumstance  is,  that  treaties,  when  formed  according 
to  the  constitutional  mode,  are  confessedly  to  have  the  force  and  operation  of 
laws^  and  are  to  be  a  rule  for  the  courts  in  controversies  between  man  and 
man,  as  much  as  any  other  laws.  They  are  even  emphatically  declared  by  the 
Constitution  to  be  '  the  supreme  law  of  the  land.' 


1^  Jefferson,  Writings,  P.  L.  Ford,  ed.,  6:  338. 
18  Madison,  Writings,  Hunt,  ed.,  6:  147-150. 


THE  FOREIGN  RELATIONS  POWER.  139 

"So  far  the  argument  from  the  Constitution  is  precisely  in  opposition  to 
the  doctrine.  As  Httle  will  be  gained  in  its  favour  from  a  comparison  of  the 
two  powers  with  those  particularly  vested  in  the  President  alone.  .  .  . 

"  Thus  it  appears  that  by  whatever  standard  we  try  this  doctrine,  it  must 
be  condemned  as  no  less  vicious  in  theory  than  it  would  be  dangerous  in  prac- 
tice. It  is  countenanced  neither  by  the  writers  on  law;  nor  by  the  nature  of 
the  powers  themselves ;  nor  by  any  general  arrangements,  or  particular  ex- 
pressions, or  plausible  analogies,  to  be  found  in  the  Constitution. 

"Whence  then  can  the  writer  have  borrowed  it? 

"There  is  but  one  answer  to  this  question. 

"The  power  of  making  treaties  and  the  power  of  declaring  war  are  royal 
prerogatives  in  the  British  government,  and  are  accordingly  treated  as  execu- 
tive prerogatives  by  British  commentators." 

80.  Essentially   Legislative   Nature.     Practice. 

In  practice  it  can  be  shown  that  Congress  has  occasionally 
passed  resolutions  advising  or  directing  the  opening  of  negotia- 
tions with  a  view  to  the  conclusion  or  modification  of  treaties  and 
the  President  has  usually  followed  this  advice.  Congress  has  also 
passed  resolutions  directing  the  termination  of  treaties  and  the  use 
of  force  abroad  aside  from  the  exercise  of  its  express  powers  of 
declaring  war,  defining  piracies  and  offenses  against  the  law  of  na- 
tions and  regulating  foreign  commerce.  The  Senate,  moreover, 
has,  throughout  American  history,  exercised  its  power  to  reject 
treaties,  or  consent  to  their  ratification  with  amendments  gujieser- 
vations. 

81.  Essentially  Legislative  Nature.     Recent  Opinion. 

In  the  Senatorial  Debate  of  1906  referred  to,  Senator  Bacon 
of  Georgia  supported  the  legislative  nature  of  the  foreign  relations 
power :  ^* 

"Mr.  Beveridge  (Indiana).  I  will  ask  this  question:  If  the  Constitution 
had  said  nothing  about  the  treaty-making  power,  where  would  the  treaty- 
making  power  have  been  lodged? 

"  Mr.  Bacon.  I  have  received  that  question  from  the  Senator  several 
times.  I  have  said  that  I  did  not  agree  with  him  that  it  would  be  with  the 
Executive. 

"Mr.  Beveridge.     Where  would  it  be? 

"  Mr.  Bacon.  I  think,  undoubtedly,  in  the  legislative  branch  of  the  Gov- 
ernment, for  reasons  which  I  will  give. 

"  Mr.  Beveridge.     That  is  the  whole  question. 


19  Supra,  note  16. 


140     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

"  Mr.  Bacon.  Here  is  where  the  sovereignty  of  the  Government  was 
intended  to  be  in  almost  its  totality — in  the  legislative  branch  of  the  Govern- 
ment, and  the  vast  array  of  powers  in  the  first  article  of  the  Constitution 
proves  it;  and,  further  than  that,  the  Constitution  of  the  United  States  was 
intended  to  take  the  place  of  and  to  supersede  the  Articles  of  Confederation, 
under  which  articles  the  power  to  make  treaties  did  lodge  in  Congress  alone; 
and  it  was  not  to  be  presumed  when  the  Constitution  was  formed  in  the 
absence  of  some  special  and  particular  designation,  that  it  was  the  intention 
to  confer  it  upon  the  Executive.     The  presumption  would  be  the  other  way." 

82.  Theory  of  a  Fourth  Department  Different  from  Either  Ex- 
ecutive or  Legislative. 

Although  on  the  whole  those  favoring  the  executive  prerogative 
have  the  better  of  the  argument,  especially  in  the  light  of  practice 
in  such  matters  as  recognition  and  treaty  negotiation,  yet  there  does 
not  seem  vv^arrant  for  a  full  acceptance  of  the  view  stated  by  Sen- 
ator Spooner.  We  are  inclined  to  reject  both  views  in  their  ex- 
treme forms  and  to  accept  that  of  the  Federalist  which  held  the 
foreign  relations  power  to  be  neither  legislative  nor  executive  but 
a  fourth  department  of  government.^** 

However,  to  sustain  this  distinction  we  must  recognize  the  am- 
biguity of  the  term  "  executive  power."  Writers  on  administrative 
law  have  recognized  the  two  distinct  functions  frequently  vested  in 
the  chief  executive,  designated  respectively  as  "  political  "  and  "  ad- 
ministrative "  functions.^^  The  political  functions  exhausted  the 
early  conception  of  "  executive  power "  and  corresponded  very 
closely  to  what  we  call  the  foreign  relations  power.  During  the 
nineteenth  century,  however,  the  administrative  functions  of  the 
chief  executive  or  the  functions  of  exectiting  the  law  and  direct- 
ing the  national  civil  services  have  increased  in  importance  and 
now  it  is  to  these  that  writers  and  courts  usually  refer  when  they 
speak  of  "  executive  power."  Thus  though  foreign  relations  power 
is  almost  .synonymous  with  executive  power  according  to  the  earlier 
usage,  under  present  usage  the  two  are  distinct. 

This  is  especially  true  in  the  United  States.  Here  the  political 
functions  of  the  executive  are  largely  in  the  field  of  foreign  rela- 

20  Infra,  sec.  85. 

21  Goodnow,  Principles  of  the  Administrative  Law  of  the  U.  S.,  p.  66; 
Willoughby,  op.  cit.,  p.  11 56. 


THE  FOREIGN  RELATIONS  POWER.  141 

tions.^-  Though  the  President  has  been  gaining  an  increasing 
pohtical  influence  in  domestic  affairs  through  the  veto,  the  patron- 
age, and  his  extra-constitutional  position  as  head  of  his  political 
party,  yet,  lacking  the  powers  of  initiating  legislation,  personally 
forcing  it  through  the  legislature,  and  if  necessary  proroguing  or 
dissolving  that  body,  commonly  exercised  by  European  executives, 
he  has  not  assumed  the  dominating  position  in  domestic  policy 
found  there.  His  legal  powers  have  been  in  the  main  confined  to 
executing  the  law  and  directing  the  national  civil  service. 

In  foreign  affairs,  on  the  other  hand,  the  President's  political 
powers  are  as  great  as  those  of  the  executive  in  most  European 
countries,  but  for  their  exercise  he  usually  requires  the  advice  and 
consent  of  the  Senate.  Thus,  these  powers  have  tended  to  be  dis- 
sociated from  the  ordinary  executive  powers  exercised  independ- 
ently by  the  President  but  within  the  limits  of  detailed  statutes. 

83.  A   Fourth  Department.     Opinion  of  Theoretical  Writers. 

A  careful  examination  of  the  views  of  Locke  and  Montesquieu 
will  indicate  that  they  regarded  the  control  of  foreign  relations  as 
a  distinct  department  of  government.  Locke  used  the  term  "  fed- 
erative "  to  designate  this  department  and  distinguished  it  from 
both  the  "  executive  "  and  "  legislative  "  departments.^^ 

"  But  because  the  laws,  that  are  at  once,  and  in  a  short  time  made,  have 
a  constant  and  lasting  force,  and  need  a  perpetual  execution  or  an  attendance 
thereunto;  therefore,  it  is  necessary  there  should  be  a  power  always  in  being 
which  should  see  to  the  execution  of  the  laws  that  are  made,  and  remain  in 
force.  And  thus  the  legislative  and  executive  power  come  often  to  be 
separated. 

"  There  is  another  power  in  every  commonwealth.  .  .  .  Though  in  a 
commonwealth  the  members  of  it  are  distinct  persons  still  in  reference  to  one 
another,  and  as  such  are  governed  by  the  laws  of  the  society;  yet  in  reference 
to  the  rest  of  mankind,  they  make  one  body.  .  .  .     Hence  it  is  that  the  con- 


22  The  only  ones  which  are  not  are  the  veto  power  given  by  Art.  I,  sec.  7, 
par.  3,  and  those  in  Art.  II,  sec.  3.  "  He  shall  from  time  to  time  give  to  the 
Congress  information  of  the  State  of  the  Union,  and  recommend  to  their 
Consideration  such  Measures  as  he  shall  judge  necessary  and  expedient;  he 
may,  on  extraordinary  occasions,  convene  both  Houses,  or  either  of  them,  and 
in  Case  of  Disagreement  between  them,  with  respect  to  the  Time  of  Adjourn- 
ment, he  may  adjourn  them  to  such  time  as  he  shall  think  proper." 

23  Treatise  of  Civil  Government,  sees.  144-148,  Works,  ed.  1801,  5 :  425-6. 


142     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

troversies  that  happen  between  any  man  of  the  society  with  those  that  are 
out  of  it  are  managed  by  the  pubhc,  and  an  injury  done  to  a  member  of  their 
body  engages  the  whole  in  the  reparation  of  it.  This,  therefore,  contains  the 
power  of  war  and  peace,  leagues  and  alliances,  and  all  the  transactions,  with 
all  persons  and  communities  without  the  commonwealth ;  and  may  be  called 
federative,  if  anyone  pleases.  So  the  thing  be  understood,  I  am  indifferent 
as  to  the  name. 

"  These  two  powers,  executive  and  federative,  though  they  be  really  dis- 
tinct in  themselves,  yet  one  comprehending  the  execution  of  the  municipal 
laws  of  the  society  within  itself,  upon  all  that  are  parts  of  it;  the  other  the 
management  of  the  security  and  interest  of  the  public  without,  with  all  those 
that  it  may  receive  benefit  or  damage  from ;  yet  they  are  always  almost 
united.  And  though  this  federative  power  in  the  well-  or  ill-management  of 
it  be  of  great  moment  to  the  commonwealth,  yet  it  is  much  less  capable  to  be 
directed  by  antecedent  standing,  positive  laws,  than  the  executive;  and  so 
must  necessarily  be  left  to  the  prudence  and  wisdom  of  those  whose  hands  it 
is  in,  to  be  managed  for  the  public  good:  for  the  laws  that  concern  subjects 
one  amongst  another,  being  to  direct  their  actions,  may  well  enough  precede 
them.  But  what  is  to  be  done  in  reference  to  foreigners,  depending  much 
upon  their  actions,  and  the  variation  of  designs,  and  interests,  must  be  left  in 
great  part  to  the  prudence  of  those  who  have  this  power  committed  to  them 
to  be  managed  by  the  best  of  their  skill,  for  the  advantage  of  the  common- 
wealth. 

"Though,  as  I  said,  the  executive  and  federative  power  of  every  com- 
munity be  really  distinct  in  themselves,  yet  they  are  hardly  to  be  separated 
and  placed  at  the  same  time  in  the  hands  of  distinct  persons;  for  both  of  them 
requiring  the  force  of  the  society  for  their  exercise,  it  is  almost  impracticable 
to  place  the  force  of  the  commonwealth  in  distinct,  and  not  subordinate 
hands ;  or  that  the  executive  and  federative  power  should  be  placed  in  persons 
that  might  act  separately,  whereby  the  force  of  the  public  would  be  under 
different  commands :  which  would  be  apt  some  time  or  other  to  cause  disorder 
and  ruin." 

IMontesquicu's  triple  division  was  the  same :  ^* 

"  In  every  government,"  he  says,  "  there  are  three  sorts  of  power :  the 
legislative;  the  executive,  in  respect  to  things  dependent  on  the  law  of  na- 
tions; and  the  executive  in  regard  to  things  that  depend  on  the  civil  law.  By 
virtue  of  the  first,  the  prince  or  magistrate  enacts  temporary  or  perpetual 
laws,  and  amends,  or  abrogates  those  that  have  been  already  enacted.  By 
the  second,  he  makes  peace  or  war,  sends  or  receives  embassies,  establishes 
the  public  security,  and  provides  against  invasion.  By  the  third,  he  punishes 
criminals,  or  determines  the  disputes  that  arise  between  individuals.  The 
latter  we  shall  call  the  judiciary  power,  and  the  other  simply  the  executive 
power  of  the  state." 


2*  L'Esprit  des  Lois,  Ixi,  c.  6,  Philadelphia,  1802,  i:  181.     Note  Madison's 
paraphrase  of  this  in  the  Federal  Convention,  infra,  note  34. 


THE  FOREIGN  RELATIONS  POWER.  143 

Both  of  these  writers  grouped  judicial  and  "  executive "  powers 
in  one  department  which  Locke  designated  "  executive  "  and  Mon- 
tesquieu "  judicial."  Each  considered  the  conduct  of  foreign  rela- 
tions a  distinct  department  of  government,  which  Locke  called 
"  federative "  and  Montesquieu,  "  executive."  Confusion  results 
from  the  different  meaning  given  to  the  term  "  executive  "  by  the 
two  men,  but  in  substance  their  classifications  were  precisely  the 
same.  This  classification  of  departments  was  also  that  which  they 
actually  observed  in  the  British  government  of  the  time. 

84.  A  Fourth  Department.     British  and  Colonial  Precedents. 

In  the  i8th  century  the  prerogative  of  the  British  Crown  in 
Council  concerned  largely  war,  foreign  relations,  colonies,  appoint- 
ments and  removals,  the  summoning,  proroguing  and  dissolution  of 
Parliament.  The  Crown  administered  the  finances  and  the  com- 
mercial regulations  but  it  did  so  under  authority  delegated  by  Par- 
liament, which  levied  all  taxes,  made  all  appropriations,  and 
passed  general  laws  for  defining  commercial  policy.  With  the  ex- 
ception of  taxation,  however,  domestic  administration  was  almost 
entirely  conducted  by  the  courts  and  the  justices  of  the  peace.^^ 


25  The  English  Government  has  been  undergoing  continuous  functional 
differentiation  throughout  its  history.  Locke  and  Montesquieu  caught  the 
process  at  a  particular  time  and  crystallized  it  in  the  theory  of  separation  of 
powers.  In  the  period  of  the  Norman  and  Angevin  kings  the  functions  of 
government  were:  (i)  Military,  controlled  by  the  king  under  restrictions  of 
feudal  and  customary  law,  and  naval,  exercised  at  first  through  the  Cinque 
ports  with  their  Warden,  and  later  delegated  to  the  Lord  High  Admiral;  (2) 
Financial,  in  which  the  Crown  was  gradually  forced  to  rely  on  parliamentary 
grants,  merely  retaining  control  of  the  administrative  machinery  for  collecting 
and  disbursing,  exercised  through  the  Justiciar  later  supplanted  by  the  Treas- 
urer and  through  the  Exchequer  with  its  chancellor;  (3)  Judicial,  in  which 
the  Crown  delegated  authority  to  the  central  courts  of  Common  Pleas,  King's 
Bench  and  Exchequer,  which,  though  appointed  by  the  Crown,  tended  to  ac- 
quire an  independence  from  its  control.  A  certain  residuum  of  judicial 
power,  however,  remained  on  the  one  hand  in  the  House  of  Lords  and  on 
the  other  in  the  Crown,  who  exercised  it  through  the  Lord  Chancellor  and 
the  Privy  Council. 

As  time  went  on,  relations  of  a  peaceful  kind  with  foreign  nations  were 
established  and  the  making  of  treaties  and  sending  and  receiving  of  diplo- 
matic officers   were  added   to  the  military  functions  of   the   Crown.     These 


144     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

Not  until  the  late  eighteenth  and  nineteenth  centuries  did  the  great 
ministries  for  domestic  administration  develop/^  and  not  until  this 
time  did  the  responsibility  of  the  Cabinet  to  Parliament  become 
established.^''  Even  during  the  19th  and  20th  centuries,  the  pre- 
rogative in  foreign  relations  has  been  exercised  by  the  Crown  in 
Council  quite  independently  both  of  party  politics  and  of  parlia- 
mentary responsibility."*  The  distinction  has  continued  to  exist 
between  the  foreign  relations  power  exercised  rather  independently 
by  the  Crown  in  Council  and  the  executive  power  exercised  by  the 
Crown  under  powers  delegated  by  Parliament  and  through  ministers 
responsible  to  that  body. 

The  executive  power  as  known  to  the  constitutional  fathers  in 
the  colonial  governor  was  similar  to  that  of  the  British  Crown  in 


were  conducted  by  the  Secretary  of  State.  Parliament  soon  began  to 
insist  that,  in  exchange  for  its  grants  of  money,  the  King  should  reform 
abuses,  first  requested  by  petition,  but  tending  to  assume  the  form  of  definite 
bills.  Thus  in  addition  to  taxation,  Parliament  acquired  the  function  of 
legislation.  As  population  increased  and  the  problems  of  local  administration 
became  more  complex,  the  courts,  and  especially  the  Justices  of  the  Peace, 
added  to  their  judicial  functions  much  of  an  administrative  character.  Thus 
by  the  time  of  the  Revolution  of  1688  the  functions  of  government  were  dis- 
tributed among  three  fairly  distinct  departments.  The  Crown  controlled  mili- 
tary, naval  and  foreign  affairs,  the  administration  of  finances  and  power  of 
appointment.  Parliament  controlled  the  raising  and  appropriation  of  revenue 
and  the  enactment  of  general  laws.  The  Courts  and  Justices  of  the  Peace 
administered  criminal  and  civil  laws  and  performed  practically  all  functions 
of  domestic  administration,  except  finance.  This  division  of  pov/er  was  de- 
scribed by  John  Locke,  taken  from  him  by  Montesquieu  and  Blackstone  and 
from  them  by  the  American  Constitutional  Fathers.  (See  Medley,  English 
Constitutional  History,  2d  ed.,  pp.  112,  231,  367,  392.) 

2"  Before  1782  the  important  ministerial  offices  were  Lord  Chancellor, 
Lord  High  Admiral  in  Commission,  Secretary  at  War,  two  Secretaries  of 
State,  one  each  for  northern  and  southern  Europe,  Lord  Treasurer  in  Commis- 
sion, Chancellor  of  the  Exchequer  and  Board  of  Trade.  None  of  these  really 
concerned  domestic  administration  except  finances.  The  Secretary  of  State 
for  Home  Affairs  was  created  in  1782;  Board  of  Works  and  Public  Build- 
ings, 1851  ;  Committee  on  Education,  later  a  Board  of  Education,  in  1856; 
Local  Government  Board,  1871 ;  Board  of  Agriculture  and  Fisheries,  1889. 
(Medley,  op.  cit.,  p.  112  et  seq.) 

2 'f  "  The  first  definite  recognition  of  this  corporate  responsibility  (of  the 
cabinet)  may  be  said  to  date  from  1782."     (Medley,  op.  cit.,  p.  109.) 

28  See  Low,  The  Governance  of  England,  N.  Y.,  1915,  p.  301;  Ponsonby, 
Democracy  and  Diplomacy,  London,  1915,  p.  45  et  seq. 


iTHE  FOREIGN  RELATIONS  POWER.  145 

the  i8th  century  with  the  very  important  exception  of  the  foreign 
relations  power.  The  colonial  governor  exercised  merely  such 
powers  as  summoning  and  dissolving  the  legislature  and  appointing 
and  removing  oflficers. 

"  Administrative  matters,"  says  Goodnow,  "  outside  of  those  directly  con- 
nected with  the  military  powers  of  the  governor  had  not  been  attended  to  by 
the  central  colonial  government  but,  in  accordance  with  English  principles  of 
local  government,  by  various  officers  in  the  local  districts  of  the  state  who 
were  regarded  as  local  in  character  and  who  often  at  the  same  time  discharged 
judicial  functions."  29 

This  was  also  true  of  the  succeeding  state  governors.  Since  all 
powers  of  the  national  government  under  the  Continental  Congress 
and  Articles  of  Confederation  were  vested  in  Congress  no  concep- 
tion of  the  scope  of  executive  or  legislative  power  could  be  gained 
from  this  experience,  though  the  need  of  a  more  efficient  control  of 
foreign  relations  was  strongly  felt  and  was  one  leading  motive 
toward  the  formation  of  the  Constitution. ^° 

85.  A  Fourth  Department.     Opinion  of  Constitutional  Fathers. 

When  the  presidency  was  first  considered  in  the  federal  conven- 
tion it  was  undoubtedly  conceived  as  analogous  to  the  colonial 
and  state  governors  who  exercised  at  that  time  neither  foreign 
relations  powers  nor  administrative  powers  but  merely  political 
powers  in  domestic  affairs.'^ 

The  Senate  was  thought  of  as  the  repository  of  power  in  for- 
eign relations.^^  As  discussion  advanced,  however,  the  analogy  of  the 
Presidency  to  the  British  Crown  was  pressed  upon  the  convention 
by  such  men  as  Hamilton  and  Gouverneur  Morris, ^^  while  Madi- 
son referred  to  Montesquieu's  conception  of  "  executive  power " 
as  a  definition  of  the  President's  powers. ^"^     The  view  of  these  men 

29  Goodnow,  op.  cit.,  p.  71. 
^oparrand,  op.  cit.,  i:  426,  513. 

31  James  Wilson,  Farrand,  op.  cit.,  i:  65,  153. 

32  Ibid.,  1 :  426. 

33  Hamilton,  Farrand,  i:  288;  G.  Morris,  Ibid.,  i:  513;  2:  104;  Mercer, 
Ibid.,  1 :  297 ;  Sherman,  Ibid.,  i  :  97. 

3* "  A  dependence  of  the  Executive  on  the  Legislature  would  render  it 
the  executor  as  well  as  the  maker  of  laws;  and  according  to  the  observation 
of  Montesquieu,  tyrannical  laws  may  be  made  that  they  may  be  executed  in 


146     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

which  vested  the  President  with  political  powers  regarding  foreign 
relations  was,  in  the  main,  accepted,  hut  to  curb  possible  autocratic 
exercises  of  power  by  the  President,  the  Senate  was  given  a  veto 
on  treaties,  while  the  power  to  declare  war  was  left  with  Congress. 
The  powers  finally  delegated  to  the  President,  and  included  in 
Article  II  of  the  Constitution  as  finally  drafted  by  Gouverneur 
Morris,  are  mostly  in  the  diplomatic  fields. 

The  powers  of  domestic  administration  which  we  now  regard 
as  the  essential  executive  powers  were  not  within  the  power  of 
either  the  colonial  governor  or  the  British  monarch  in  the  eighteenth 
century  and  it  was  not  intended  that  they  should  be  within  the 
President's  discretionary  control.  The  fathers  intended  that  these 
powers  should  be  exercised  by  officers  largely  under  the  detailed 
control  of  Congress  and  in  the  early  acts  organizing  departments 
of  government  this  plan  was  carried  out. 

"  In  the  United  States,"  says  Willoughby,  "  it  was  undoubtedly  intended 
that  the  President  should  be  little  more  than  a  political  chief;  that  is  to  say, 
one  whose  functions  should  in  the  main  consist  in  the  performance  of  those 
political  duties  which  are  not  subject  to  judicial  control.  It  is  quite  clear  that 
it  was  intended  that  he  should  not,  except  as  to  these  political  matters,  be  the 
administrative  head  of  the  government,  with  general  power  of  directing  and 
controlling  the  acts  of  subordinate  administrative  agents."  ^s 

Later,  through  the  use  of  the  implied  or  perhaps  inherent  power  of 
the  President  to  remove  officers,  and  by  a  wide  interpretation  of 
the  clause  requiring  the  President  "to  take  care  that  the  laws  be 
faithfully  executed,"  originally  indicating  supervision  rather  than 
direction,  the  administrative  powers  of  the  President  increased. 
At  the  same  time  the  term  "  executive  power  "  changed  in  meaning 

a  tyrannical  manner.  There  was  an  analogy  between  the  Executive  and  Ju- 
diciary departments  in  several  respects.  The  latter  executed  the  laws  in  cer- 
tain cases  as  the  former  did  in  others.  The  former  expounded  and  applied 
them  for  certain  purposes  as  the  latter  did  for  others.  The  difference  be- 
ween  them  seemed  to  consist  chiefly  in  two  circumstances— i.  The  collective 
interest  and  security  were  much  more  in  the  power  belonging  to  the  Execu- 
tive than  to  the  Judiciary  department.  2.  In  the  administration  of  the  former 
much  greater  latitude  is  left  to  opinion  and  discretion  than  in  the  adminis- 
tration of  the  latter."     Madison,  Farrand,  op.  cit.,  2:  34. 

"Willoughby,  op.  cit.,  p.  1156.    See  also  Gogdnow,  op.  cit.,  p.  78. 


THE  FOREIGN  RELATIONS  POWER.  147 

and  although  it  still  included  the  notion  of  political  functions,  its 
primary  association  was  with  the  new  administrative  functions. 

Thus  when  the  constitutional  convention  gave  "  executive 
power "  to  the  President,  the  foreign  relations  power  was  the 
essential  element  in  the  grant,  but  they  carefully  protected  this 
power  from  abuse  by  provisions  for  senatorial  or  congressional 
veto.  This  power  ought  to  be  distinguished  from  the  power  of 
the  President  as  head  of  the  administration  which  he  exercises 
independently  within  the  limits  of  congressional  legislation  and 
which  by  present  usage  forms  the  essential  element  in  "  executive 
power." 

Whether  consideration  is  given  to  the  works  of  theoretical 
writers  known  to  the  fathers,  the  precedents  of  England,  the  colonies 
or  the  Confederation,  or  the  discussion  of  the  Federal  convention 
itself,  we  may  conclude  that  The  Federalist  expressed  the  opinion 
of  the  constitutional  convention  as  to  the  nature  of  the  foreign 
relations  power,  so  far  as  they  had  an  opinion  on  that  subject,  when 
with  prevision  of  the  later  significance  of  the  term  "executive 
power"  it  classified  the  treaty  power  as  a  fourth  department  of 
government ;  ^^ 

"The  essence  of  the  legislative  authority  is  to  enact  laws,  or,  in  other 
words,  to  prescribe  rules  for  the  regulation  of  the  society;  while  the  execu- 
tion of  the  laws  and  the  employment  of  the  common  strength,  eitlier  for  this 
purpose  or  for  the  common  defense,  seem  to  comprise  all  the  functions  of  the 
executive  magistrate.  The  power  of  making  treaties  is  plainly  neither  the 
one  nor  the  other.  It  relates  neither  to  the  execution  of  the  subsisting  laws 
nor  to  the  enaction  of  new  ones,  and  still  less  to  an  exertion  of  the  common 
strength.  Its  objects  are  contracts  with  foreign  nations,  which  have  the  force 
of  law,  but  derive  it  from  the  obligations  of  good  faith.  They  are  not  rules 
prescribed  by  sovereign  to  the  subject,  but  agreements  between  sovereign  and 
sovereign.  The  power  in  question  seems,  therefore,  to  form  a  distinct  depart- 
ment, and  to  belong,  properly,  neither  to  the  legislative  nor  to  the  executive. 
The  qualities  elsewhere  detailed  as  indispensable  in  the  management  of  foreign 
negotiations  point  out  the  Executive  as  the  most  fit  agent  in  those  trans- 
actions; while  the  vast  importance  of  the  trust,  and  the  operation  of  treaties 
as  laws,  plead  strongly  for  the  participation  of  the  whole  or  a  portion  of  the 
legislative  body  in  the  office  of  making  them." 


36  The  Federalist,  No.  75  (Hamilton),  Ford  ed.,  p.  500.  Hamilton  later 
shifted  to  a  defense  of  the  wholly  executive  nature  of  the  foreign  relations 
power.    Supra,  sec.  ^6. 


148     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

86.  A  Fourth  Department.     Functional  Classification. 
Functionally   it  would  seem  that  the   foreign  relations  power, 

which  both  frames  and  carries  out  foreign  policies,  both  contracts 
and  meets  international  responsibilities,  is  essentially  different  from 
either  the  legislative  power,  which  frames  domestic  laws  and 
policies,  or  the  executive  power  which  administers  domestic  laws 
and  policies.  According  to  the  terminology  of  Professors  Good- 
now  ^'  and  other  writers  on  administrative  law  the  conduct  of  foreign 
relations  involves  both  "  politics  "  and  "  administration  "  in  external 
affairs  and  is  distinct  from  either  "politics"  or  "administration" 
in  internal  affairs. 

87.  A  Fourth  Department.     Practice. 

In  practice  the  control  of  foreign  relations  has  differed  from 
the  control  of  either  legislation  or  domestic  administration.  While 
the  President  has  suggested  legislation  in  messages  to  Congress 
he  has  not  as  a  rule  taken  a  position  of  active  leadership  in  the 
formulation  of  domestic  policy.  The  initiative  has  been  with  the 
committees  of  Congress  and  the  President's  discretion  has  been  closely 
limited  by  law  enforceable  in  the  courts.  It  is  true  the  President 
controls  administrative  officials  through  his  removal  power.  He 
instructs  officials  as  to  the  method  of  executing  the  laws  under  au- 
thority given  him  by  Congress  and  sometimes  he  even  supplements 
legislation  by  instructions  or  regulations  of  a  general  character  not 
specifically  authorized. ^^  But  he  must  always  act  within  the  con- 
fines of  an  ever-increasing  mass  of  congressional  legislation. 
Congress  has  described  the  powers  of  officials  and  the  methods  of 
administration  in  considerable  detail  and  the  President,  or  rather 
his  subordinates,  are  forced  by  the  courts  to  observe  such  legislation. 
As  legislation  of  this  character  increases  in  mass  and  detail,  and  as 
the  practices  and  methods  of  permanent  services  become  fixed  by 
tradition  as  well  as  law,  the  President's  discretion  as  head  of  the 
administration  becomes  reduced.  His  functions  in  this  capacity 
tend  to  assume  a  purely  supervisory  and  ministerial  character. 


37  Goodnow,  op.  cit.,  p.  666,  and  Willoughby,  op.  cit.,  p.  1156. 
3^  Goodnow,  op.  cit.,  pp.  47,  75. 


[THE  FOREIGN  RELATIONS  POWER.  149 

In  foreign  relations,  however,  the  President  exercises  discretion, 
both  as  to  the  means  and  as  to  the  ends  of  policy.  He  exercises  a 
discretion,  very  little  limited  by  directory  laws,  in  the  method  of 
carrying  out  foreign  policy.  He  has  moved  the  navy  and  the  marines 
at  will  all  over  the  world.  He  has  exercised  a  broad  discretion  in 
issuing  both  standing  regulations  and  instructions  and  special  in- 
structions for  the  diplomatic,  consular,  military  and  naval  services. 
Though  Congress  has  legislated  on  broad  lines  for  the  conduct  of 
these  services  it  has  descended  to  much  less  detail  than  in  the  case 
of  services  operative  in  the  territory  of  the  United  States.  In  the 
foreign  affairs  the  President,  also,  has  a  constitutional  discretion 
as  the  representative  organ  and  as  commander-in-chief  which  can- 
not be  taken  away  by  Congress  and  because  of  the  exterritorial 
character  of  most  of  his  action,  his  subordinates  are  not  generally 
subject  to  judicial  control. 

But  more  than  this  he  has  initiated  foreign  policies,  even  those 
leading  to  treaties  and  those  leading  to  war,  and  has  generally 
actively  pushed  these  policies  when  the  cooperation  of  other  organs 
of  government  is  necessary  for  their  carrying  out.  Though  Congress 
may  by  resolution  suggest  policies  its  resolutions  are  not  mandatory 
and  the  President  has  on  occasion  ignored  them.  Ultimately,  how- 
ever, his  power  is  limited  by  the  possibility  of  a  veto  upon  matured 
policies,  by  the  Senate  in  the  case  of  treaties,  by  Congress  in  the 
case  of  war.  This  contrast  between  the  domestic  and  foreign  powers 
of  the  President  is  thus  emphasized  by  Rawle :  ^" 

"On  a  full  view  of  the  powers  and  duties  of  the  President,  the  reader 
will  probably  perceive  that  they  are  of  more  importance  in  respect  to  foreign 
relations  than  the  internal  administration  of  government. 

"  At  home,  his  path  though  dignified,  is  narrow.  In  the  tranquility  wliich 
we  have  hitherto  in  time  of  peace  enjoyed,  little  more  has  been  requisite,  in 
either  his  legislative  or  executive  functions  than  regularly  to  pursue  the  plain 
mandates  of  laws,  and  the  certain  text  of  the  constitution.  .  .  . 

"But  it  is  in  respect  to  external  relations;  to  transactions  with  foreign 
nations,  and  the  events  arising  from  them,  that  the  President  has  an  arduous 
task.     Here  he  must  chiefly  act  on  his  own  independent  judgment." 

88.  The  Foreign  Relations  Department.     Conclusion. 

In  foreign  affairs,  therefore,  the  controlling  force  is  the  reverse 


2"  Rawle,  A  View  of  the  Constitution,  Philadelphia,  1825,  pp.  182-183. 


150     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

of  that  in  domestic  legislation.  The  initiation  and  development  of 
details  is  with  the  President,  checked  only  by  the  veto  of  the 
Senate  or  Congress  upon  completed  proposals.  In  domestic  legis- 
lation on  the  other  hand,  the  initiative  and  drafting  of  details  is 
with  Congress,  checked  by  the  President's  limited  veto  upon  com- 
pleted bills.  In  practice  it  seems  possible  to  distinguish  four  great 
departments  of  government,  not  only  according  to  their  functions, 
but  also  according  to  their  organization  and  methods.  The  legis- 
lative power  is  vested  in  Congress  with  a  limited  presidential  veto. 
The  foreign  relations  power  is  vested  in  the  President  with  an 
absolute  senatorial  or  congressional  veto.  The  executive  power 
is  vested  in  the  President  acting  independently  within  the  limits  of 
detailed  congressional  legislation  defining  the  power  and  procedure 
of  administrative  officials.  The  judicial  power  is  vested  in  the 
courts  acting  independently  within  the  narrowly  defined  limits  of 
procedure  and  jurisdiction  defined  by  the  common  law  and  congres- 
sional legislation. 


CHAPTER  X. 
The  Power  to  Meet  International  Responsibilities. 

89.  The  Law  of  International  Responsibility. 

The  principles  determining  the  responsibiHty  of  states  under  in- 
ternational law  have  not  been  fully  formulated  and  such  formula- 
tion has  proved  difficult  because  of  the  divergencies  of  practice 
which  have  sometimes  resulted  from  differences  in  national  power. 
Borchard  has  given  the  best  survey  of  the  subject  and  the  following 
statement  is  based  largely  on  his  work.'- 

I.  Acts  of  Government  Organs. 

The  state  is  responsible  for  tortious  acts  committed  by  executive, 
diplomatic,  naval,  military,  and  superior  administrative  officers  of 
the  central  government  or  local  subdivisions  unless  plainly  outside 
of  their  functions  and  promptly  disavowed.  For  such  acts  by 
inferior  administrative  officers,  the  state  is  responsible  only  if  there 
is  evidence  either  express,  by  authorization  of  a  superior  officer  or  of 
the  law,  or  tacit,  by  the  failure  to  afford  redress  or  to  punish  the 
offending  officer,  that  it  sanctioned  the  act.^  Judicial  errors  are  not 
in  themselves  torts,  though  the  courts  may  involve  the  interna- 
tional responsibility  of  the  state  if  they  fail  to  apply  international 
law  or  deny  justice.^ 

The  state  is  also  responsible  for  the  authorization  of  acts 
violative  of  international  law,  or  treaty,  or  unreasonably  discrimi- 
natory, by  constitutional  provision,  legislative  act,  executive  or  ad- 
ministrative decree,  or  judicial  decision  of  central  or  local  de  jure 


1  Borchard,  Diplomatic  Protection  of  Citizens  Abroad,  p.  177  et  seq. 
See  also  Hall,  International  Law  (Higgins),  pp.  226-232;  Oppenheim,  Int. 
Law,  I :  sec.  148  et  seq.     For  definition  of  "  responsibility  "  see  infra,  sec.  141. 

2  Borchard,  op.  cit.,  pp.  189-192. 
^  Ibid.,  p.  195. 

161 


152     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

authority.*  The  promulgation  of  such  constitutional  provision, 
statute,  ordinance  or  decision,  if  sufficiently  concrete  to  raise  a 
presumption  that  international  law  will  be  violated,  is  a  ground  for 
immediate  protest.  Other  states  are  not  obliged  to  await  the 
actual  commission  of  an  act  in  violation  of  their  rights.^ 

2.  Acts  or  Omissions  of  Individuals  within  State  Jurisdiction. 
The  state  is  responsible   for  the  nonfulfillment  of   contractual 

obligations  made  by  private  individuals  or  by  public  officers,  ultra 
vires,  and  for  tortious  acts  committed  in  its  jurisdiction  by  private 
individuals,  inferior  officers  or  any  officers  acting  without  authority, 
only  in  case  its  courts  "  deny  justice  "  or  executive  and  administra- 
tive officers  fail  to  exert  "  due  diligence "  in  the  maintenance  of 
order  and  enforcement  of  international  law  and  treaty.^  The  de- 
finition of  "  denial  of  justice "  involving  an  investigation  of  the 
adequacy  of  municipal  law  remedies  and  the  degree  of  their  ob- 
servance in  the  particular  case  and  of  "  due  diligence,"  involving 
the  establishment  of  criteria  applicable  to  mob  violence,  insurrec- 
tion, war  and  neutrality,  has  proved  the  most  difficult  branch  of  the 
subject  of  responsibility.  In  other  cases  of  responsibility  the  gov- 
ernment itself  is  at  fault  and  the  responsibility  of  the  state  is  direct 
and  immediate.  In  the  present  case  the  original  fault  is  not  by 
the  government,  and  the  state  is  responsible  indirectly  or  vicariously 
and  only  after  municipal  law  remedies  have  been  exhausted^ 

3.  Non-fulfillment  of  Obligation. 

The  state  is  responsible  for  the  non-fufillment  of  contractual 
obligations  made  by  any  legislative,  executive  or  administrative 
organ  acting  within  legal  authority  derived  from  a  de  jure  govern- 


*  Ibid.,  p.  181. 

°  See  Ambassador  Bryce  to  Secretary  of  State  Knox,  February  27,  1913, 
Diplomatic  History  of  the  Panama  Canal,  65th  Cong.,  2d  sess.,  Sen.  Doc,  No. 
474,  p.  loi,  supra,  sec.  15. 

8  Borchard,  op.  cit.,  pp.  183,  213,  283.  As  to  two  meanings  of  expression 
"denial  of  justice,"  see  ibid.,  p.  335. 

"^  Ibid.,  p.  180.  See  also  Hall,  op.  cit.,  p.  226.  Oppenheim,  loc.  cit.,  origi- 
nated the  expression  "vicarious  responsibility"  in  this  connection. 


INTERNATIONAL  RESPONSIBILITIES.  153 

merit  or  generally  recognized  de  facto  government  of  the  state  as 
a  whole,  and  for  the  non-performance  of  acts  required  by  interna- 
tional law.  Contractual  obligations  made  under  authority  of  po- 
litical subdivisions  of  the  state  or  under  authority  of  local  de  facto 
governments,  or  de  facto  governments  which  never  attain  general 
recognition,  do  not  involve  an  international  responsibility  unless  the 
state  received  a  benefit  therefrom.^  The  question  of  whether  force 
may  be  used  to  compel  the  payment  of  public  contract  debts  (in- 
volved in  the  Drago  Doctrine  and  II  Hague  Conventions  1907) 
relates  to  the  remedy  and  not  to  the  legal  responsibility.^ 

The  state  is  responsible  for  the  reparation  which  treaty  or  in- 
ternational law  may  impose,  in  case  of  failure  to  meet  any  of  the 
foregoing  responsibilities. 

90.  State  Power  to  Meet  International  Responsibilities. 

Extensive  powers  for  the  employment  of  military  force,  the  rais- 
ing and  appropriation  of  money,  the  administration  of  justice  and 
criminal  law,  and  the  organization  and  administration  of  public 
services  are  given  to  the  national  government  by  the  Constitution. 
Are  these  powers  sufficient  to  meet  all  present  and  possible  inter- 
national responsibilities?  The  states  originally  had  full  power  to 
meet  international  responsibilities  except  as  restricted  by  their  own 
constitutions  and  they  retain  that  power  except  as  expressly  or  im- 
pliedly limited  by  the  Federal  Constitution.  The  delegation  of 
power  to  the  national  government  does  not  of  itself  deprive  states 
of  concurrent  power,  unless  the  power  is  by  nature  exclusive.^"  The 
express  prohibition  of  treaty-making  and  of  agreement-making  with- 
out consent  of  congress  prevents  them  from  extraditing  criminals 
without  express  authorization  by  congress  or  treaty.  Justice  Taney 
held  in  1839  that  extradition  belonged  "  exclusively  to  the  Federal 
Government "  and  the  action  of  Governor  Jennison  of  Vermont  in 
issuing  a  warrant  for  the  arrest  of  one  Holmes  charged  with  mur- 
der in  Canada  was  "  repugnant  to  the  Constitution  of  the  United 
States."  " 


8  Borchard,  op.  cit.,  p.  184. 

9  Ibid.,  pp.  286,  308. 

1'^  Cooley  V.  Board  of  Port  Wardens,  13  How.  294. 

11- Holmes  v.  Jennison,  14  Pet.  540,  579  (1840)  ;  Moore,  Digest,  4:  242. 


154     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

However,  the  states  still  have  power  to  meet  many  international 
responsibilities  involving  action  within  their  own  borders.  Thus  the 
jurisdiction  of  state  courts  usually  extends  to  many  cases  involving 
the  enforcement  of  treaty  provisions  such  as  those  according  civil 
rights,  rights  of  property  and  inheritance  to  resident  aliens,  and  in 
such  cases,  under  the  Federal  Constitution  they  are  obliged  to  apply 
the  treaty  as  the  supreme  law  of  the  land.  State  courts  usually  also 
have  jurisdiction  under  common  law  to  give  justice  to  aliens  in  civil 
cases  and  to  punish  many  offenses  against  the  law  of  nations  such 
as  libels  and  conspiracies  against  foreign  governments.  The  state 
executive  ordinarily  has  power  to  employ  the  militia  to  preserve 
order  and  accord  aliens  within  the  state's  territory  the  protection 
required  by  international  law  and  treaty  and  state  legislatures  gen- 
erally have  power  to  pass  acts  for  the  punishment  of  offenses  against 
international  law.^^ 

91.  National  Pozver  to  Meet  International  Responsibilities. 

Does  the  national  government  have  power  to  take  over  the  entire 
burden  from  the  states?  Authorities  say  yes,  and  have  rested  on 
three  theories.  The  argument  drawn  from  the  assumed  enjoyment 
by  the  national  government  of  sovereign  powers  with  respect  to 
matters  transcending  state  limits  has  been  discussed  and  found  want- 
ing."    Repudiating  this  argument,  Willoughby  says : " 

"  Starting  from  the  premise  that  in  all  that  pertains  to  international  rela- 
tions the  United  States  appears  as  a  single  sovereign  nation,  and  that  upon  it 
rests  the  constitutional  duty  of  meeting  all  international  responsibilities,  the 
Supreme  Court  has  deduced  corresponding  federal  powers." 

This  argument  seems  equally  untenable.  It  commits  the  fallacy 
of  deducing  powers  from  responsibilities  which  Professor  Wil- 
loughby himself  denounced  later  in  the  same  book.^^  The  supreme 
court  has  not  relied  on  such  an  argument  but  on  specific  delega- 
tions of  power  by  the  Constitution  ;^^ 

^"^  Infra,  sees.  98.  no,  136. 

^3  Supra,  sec.  71. 

"Willoughby,  op.  cit.,  p.  64.     See  also  ibid.,  p.  451. 

^^  See  infra,  sec.  93. 

"U.  S.  V.  Arjona,  120  U.  S.  479,  483;  Moore,  Digest,  2:  430. 


INTERNATIONAL  RESPONSIBILITIES.  155 

"  As  all  official  intercourse  between  a  State  and  foreign  nation  is  pre- 
vented by  the  Constitution  and  exclusive  authority  for  that  purpose  given  to 
the  United  States,  the  National  Government  is  responsible  to  foreign  nations 
for  all  violations  by  the  United  States  of  their  international  obligations,  and 
for  this  reason  Congress  is  expressly  authorized  to  define  and  punish  .  .  . 
offenses  against  the  law  of  nations." 

In  addition  to  the  clause  here  referred  to,  the  "  necessary  and 
proper  "  clause  accords  the  national  government  powers  adequate  to 
meet  all  international  responsibilities,  derived  from  valid  acts  or 
commitments  made  by  national  organs.^^ 

Q2.  Theory  of  InJierent  Executive  Power  to  Meet  International  Re- 
sponsibilities 

How  is  the  power  to  meet  international  responsibilities  distributed 
among  the  departments  of  the  national  government  ? 

Hamilton,  Roosevelt  and  others  have  considered  the  President 
empowered  to  take  measures  for  meeting  all  responsibilities  by  the 
first  clause  of  Article  H  which  vests  him  with  "the  executive  power 
of  the  United  States." 

"  It  would  not  consist  with  the  rules  of  sound  construction,  to  consider 
this  enumeration  of  particular  authorities"  (in  Article  II),  wrote  Hamilton 
in  the  Pacificus  Paper,  "  as  derogating  from  the  more  comprehensive  grant  in 
the  general  clause,  further  than  as  it  may  be  coupled  with  express  restrictions 
or  limitations;  as  in  regard  to  the  cooperation  of  the  Senate  in  the  appoint- 
ment of  officers,  and  making  of  treaties;  which  are  plainly  qualifications  of 
the  general  executive  powers  of  appointing  officers  and  making  treaties.  The 
difficulty  of  a  complete  enumeration  of  all  the  cases  of  executive  authority 
would  naturally  dictate  the  use  of  general  terms,  and  would  render  it  improb- 
able that  specification  of  certain  particulars  was  designed  as  a  substitute  for 
those  terms,  when  antecedently  used.  The  different  mode  of  expression  em- 
ployed in  the  Constitution,  in  regard  to  the  two  powers,  the  legislative  and 
the  executive,  serves  to  confirm  this  inference.  In  the  article  which  gives  the 
legislative  powers  of  the  government  the  expressions  are,  'All  legislative 
powers  herein  granted  shall  be  vested  in  a  Congress  of  the  United  States.' 
In  that  which  grants  the  executive  power,  the  expressions  are,  'The  execu- 
tive poiver  shall  be  vested  in  a  President  of  the  United  States.'  This  enu- 
meration ought,  therefore,  to  be  considered  as  intended  merely  to  specify  the 
principal  articles  implied  in  the  definition  of  executive  power;  leaving  the 
rest  to  flow  from  the  general  grant  of  that  power,  interpreted  in  conformity 
with  other  parts  of  the  Constitution,  and  with  the  principles  of  free  govern- 

1^  Infra,  sec.  95.  '  / 


156     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

ment.  The  general  doctrine  of  the  Constitution  then  is,  that  the  executive 
power  of  the  nation  is  vested  in  the  President,  subject  only  to  the  exceptions 
and  qualifications  which  are  expressed  in  the  instrument."  ^^ 

President  Roosevelt  affirmed  belief  in  the  same  doctrine  over  a 
century  later  in  his  autobiography  :^^ 

"  I  declined  to  adopt  the  view  that  what  was  imperatively  necessary  for 
the  Nation  could  not  be  done  by  the  President  unless  he  could  find  some 
specific  authorization  to  do  it.  My  belief  was  that  it  was  not  only  his  right 
but  his  duty  to  do  anything  that  the  needs  of  the  Nation  demanded  unless 
such  action  was  forbidden  by  the  Constitution  or  by  the  laws.  Under  this 
interpretation  of  executive  power  I  did  and  caused  to  be  done  many  things 
not  previously  done  by  the  President  and  the  heads  of  departments.  I  did 
not  usurp  power,  but  I  did  greatly  broaden  the  use  of  executive  power.  In 
other  words,  I  acted  for  the  public  welfare,  I  acted  for  the  common  well- 
being  of  all  our  people,  whenever  and  in  whatever  manner  was  necessary, 
unless  prevented  by  direct  constitutional  or  legislative  prohibition." 

As  an  illustration  of  the  exercise  of  power  "  not  explicitly  given  me 
by  the  Constitution  "  he  cites  the  making  and  carrying  out  of  the 
executive  agreement  with  San  Domingo  whereby  he  took  over  the 
administration  of  her  customs  houses.^" 

This  view  of  executive  authority  has  not  been  supported  by 
writers  of  a  more  legalistic  temperament : 

"  The  general  grant  of  executive  power  to  the  President,"  says  Goodnow, 
"  meant  little  except  that  the  President  was  to  be  the  authority  in  the  govern- 
ment that  was  to  exercise  the  powers  afterwards  enumerated  as  his."  ^i 

"  The  true  view  of  the  Executive  functions  is,"  says  President  Taft,  "  as 
I  conceive  it,  that  the  President  can  exercise  no  power  which  cannot  be 
fairly  and  reasonably  traced  to  some  specific  grant  of  power  or  justly  implied 
and  included  within  such  express  grant  as  proper  and  necessary  to  its  exer- 
cise. Such  specific  grant  must  be  either  in  the  Federal  Constitution  or  in  an 
act  of  Congress  passed  in  pursuance  thereof.  There  is  no  undefined  residuum 
of  power  which  he  can  exercise  because  it  seems  to  him  to  be  of  public  in- 
terest, and  there  is  nothing  in  the  Neagle  case  and  its  definition  of  a  law  of 
the  United  States,  or  in  other  precedents,  warranting  such  an  inference." 


18  Hamilton,  in  document  quoted  supra,  sec.  78. 
10  Roosevelt,  Autobiography,  pp.  388-389. 

20  Op.  cit.,  pp.  551-552. 

21  Goodnow,  op.  cit.,  p.  y2>- 


INTERNATIONAL  RESPONSIBILITIES.  157 

Later  President  Taft  attacks  the  Roosevelt  doctrine  on  practical 
grounds : 

"  My  judgment  is  that  the  view  of  Mr.  Garfield  and  Mr.  Roosevelt  ascrib- 
ing an  undefined  residuum  of  power  to  the  President  is  an  unsafe  doctrine 
and  that  it  might  lead  under  emergencies  to  results  of  an  arbitrary  character, 
doing  irremediable  injustice  to  private  right.  The  mainspring  of  such  a  view 
is  that  the  Executive  is  charged  with  responsibility  for  the  welfare  of  all 
people  in  a  general  way,  that  he  is  to  play  the  part  of  a  Universal  Providence 
and  set  all  things  right  and  that  anything  that  in  his  judgment  will  help  the 
people,  he  ought  to  do,  unless  he  is  expressly  forbidden  not  to  do  it.  The 
wide  field  of  action  that  this  would  give  to  the  Executive  one  can  hardly 
limit."  22 

93.  President's  Duty  to  Execute  the  Laws. 

The  responsibility  of  the  President  to  "  take  care  that  the  law^s  be 
faithfully  executed  "  was  held  in  the  Neagle  case^^  to  confer  power 
upon  the  President  to  authorize  an  individual  to  employ  force  for 
the  protection  of  a  federal  justice.  Here  again  we  seem  to  find 
power  derived  from  responsibility.  If  this  doctrine  were  carried  out 
and  as  the  court  said  in  this  case,  the  term  "  laws  "  includes  not 
only  acts  of  congress  and  treaties  but  also  "  the  rights,  duties  and 
obligations  growing  out  of  .  .  .  international  relations,"  a  most  in- 
admissible result  would  be  reached.  The  President  would  be  found 
to  have  power  to  declare  war,  pay  out  money,  reduce  the  military 
establishment  and  perform  all  other  acts  necessary  to  meet  interna- 
tional responsibilities.  We  must  agree  with  Willoughby^*  that  the 
doctrine  of  the  Neagle  case  is  "justified  only  in  exceptional  circum- 
stances "  and  "  the  obligation  to  take  care  that  the  laws  of  the  United 
States  are  faithfully  executed,  is  an  obligation  but  confers  in  itself 
no  powers.  It  is  an  obligation  which  is  to  be  fulfilled  by  the  exer- 
cise of  those  powers  which  the  Constitution  and  Congress  have  seen 
fit  to  confer."  The  constitutional  requirement  in  question  means 
that  the  President  shall  exercise  his  power  as  commander-in-chief  to 


22  Taft,  op.  cit.,  pp.  140,  144.  See  also  Senatorial  debate  of  1831,  quoted 
Corwin,  op.  cit.,  p.  59. 

23 /h  re  Neagle,  135  U.  S.  i. 

24  Willoughby,  op.  cit.,  pp.  1155.  But  see  Goodnow,  op.  cit.,  pp.  47,  75, 
and  Hamilton,  quoted  Corwin,  op.  cit.,  p.  15. 


1^8     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

move  the  forces,  his  power  as  head  of  the  civil  administration  to 
direct  and  instruct  diplomatic,  consular  and  other  officers  within 
the  scope  of  their  powers  as  fixed  by  congress,  his  power  to  negotiate 
treaties,  his  power  to  receive  diplomatic  officers  and  his  other  powers 
given  specifically  by  the  Constitution  or  by  congress  in  the  manner 
most  appropriate  to  execute  the  laws,  including  international  law 
and  treaties.  It  does  not  mean  that  he  can  supply  means  not  pro- 
vided by  law  or  take  measure  not  within  the  scope  of  his  delegated 
powers,  however  appropriate  they  might  be  for  the  meeting  of  inter- 
national responsibilities.  Within  his  recognized  powers,  however, 
assuming  the  existence  of  the  military,  naval  and  civil  organizations 
as  provided  by  congress,  the  President  has  power  to  meet  many  in- 
ternational responsibilities  without  the  aid  of  congress. 

94.  Power  of  Courts  to  Meet  International  Responsibilities. 

The  federal  courts  are  obliged  by  the  Constitution  to  apply 
treaties  as  the  supreme  law  of  the  land  and  have  held  that  they 
must  apply  international  law  in  appropriate  cases,  though  subsequent 
express  statutes  will  prevail  in  either  case."^  This,  however,  is  an 
obligation  and  not  a  power.  The  view  taken  by  the  courts  in  a 
few  early  cases  that  from  these  duties  they  could  derive  jurisdiction 
to  enforce  international  law  even  by  criminal  punishments  has  not 
prevailed.-*^  The  extension  of  federal  judicial  power  by  Article  III 
of  the  Constitution : 

"  to  all  cases,  in  law  and  Equity,  arising  under  this  Constitution,  the  Laws 
of  the  United  States,  and  Treaties  made,  or  which  shall  be  made  under  their 
Authority; — to  all  Cases  of  admiralty  and  maritime  jurisdiction;  to  contro- 
versies to  which  the  United  States  shall  be  a  party;  and  to  controversies  .  .  . 
between  a  State  or  the  Citizens  thereof,  and  Foreign  states.  Citizens  or 
Subjects  " 

seems  to  give  an  opportunity  for  a  full  cooperation  of  the  federal 
courts  in  meeting  international  responsibilities.  This  jurisdiction, 
however,  with  exception  of  the  original  jurisdiction  of  the  Supreme 
Court  which  includes  cases  affecting  diplomatic  officers  and  consuls. 


^^  Infra,  sees.  106-108. 
^^  Infra,  sec.  129. 


INTERNATIONAL  RESPONSIBILITIES.  159 

is  subject  to  regulation  by  congress.  Thus  in  fact,  aside  from  the 
recourses  offered  diplomatic  officers  and  consuls  to  the  Supreme 
Court,  the  federal  courts  can  aid  in  the  meeting  of  international  re- 
sponsibilities only  in  so  far  as  congress  has  specifically  conferred 
jurisdiction  upon  them.  Their  jurisdiction  has  in  fact  been  extended 
to  most  of  the  cases  described  in  the  Constitution  and  their  appli- 
cation of  international  law  and  treaties,  in  prize  cases,  cases  affecting 
foreign  sovereigns,  diplomatic,  military  and  naval  officers,  cases 
affecting  domiciled  aliens,  sojourning  foreign  vessels  and  others  is 
an  effective  means  of  meeting  many  international  responsibilities. 
Congress  has  defined  a  considerable  number  of  crimes  at  interna- 
tional  law,  such  as  piracy,  offenses  against  neutrality,  offenses 
against  foreign  ministers  and  offenses  against  foreign  currency, 
which  are  made  punishable  by  the  federal  courts.^^ 

95.  Power  of  Congress  to  Meet  International  Responsibilities. 

Aside  from  the  exercise  of  specific  powers,  such  as  the  appro- 
priation of  money,  the  regulation  of  commerce,  provision  for  the 
punishment  of  piracies  and  offenses  against  the  law  of  nations, 
declaration  of  war,  grant  of  letters  of  marque  and  reprisal,  making 
of  rules  concerning  capture,  maintenance  and  regulation  of  an  army 
and  navy.  Congress  can  "  make  all  laws  which  shall  be  necessary 
and  proper  for  carrying  into  execution  .  .  .  all  .  .  .  powers  vested 
by  this  Constitution  in  the  Government  of  the  United  States  or  in 
any  department  or  officer  thereof."  This  clause  unquestionably  con- 
fers power  upon  Congress  sufficient  to  meet  every  possible  inter- 
national responsibility.  Accepting  the  doctrine  of  the  Supreme 
Court  that  the  exercise  of  sovereignty  may  be  limited  only  by  its 
own  consent,^^  it  follows  that  every  international  responsibility  must 
have  originated  in  a  constitutional  exercise  of  power  by  some  organ 
of  the  national  government,  either  through  positive  action  or  tacit 
recognition.     Thus  responsibilities  founded  on  treaty  originate  in  a 

^"^  Infra,  sees.  113-118. 

28  The  Schooner  Exchange  v.  McFaddon,  7  Cranch  116,  quoted  with  ap- 
proval in  the  Chinese  Exclusion  Cases,  130  U.  S.  581  (1889).  See  also  infra, 
sec.  138. 


160     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

valid  act  of  the  treaty  power,  responsibilities  founded  on  arbitral 
decisions  originate  either  in  a  valid  act  of  the  treaty  power  or  of 
the  President,  responsibilities  founded  on  general  international  law 
originate  in  the  tacit  acceptance  of  that  law  by  the  terms  of  the  Con- 
stitution-^  and  by  the  President  in  continuing  membership  in  the 
family  of  nations,  as  evidenced  through  the  continued  exchange  of 
diplomatic  officers.^"  In  providing  for  carrying  these  powers  into 
execution,  therefore.  Congress  would  be  providing  for  meeting  the 
international  responsibilities  they  created.  Thus  if  the  President  or 
the  Courts  are  unable  properly  to  meet  any  international  respon- 
sibility it  is  not  from  a  defect  in  the  Constitution,  but  from  failure 
of  Congress  fully  to  exercise  its  powers  under  the  "necessary  and 
proper "  clause.  Congress  has  in  fact  enacted  many  laws  whose 
purpose  is  the  enforcement  of  international  law  and  treaty.^^  It  has 
never  failed  to  make  an  appropriation  when  called  for  by  treaty 
and  has  often  made  appropriations  to  satisfy  claims  based  on  inter- 
national law  as  determined  by  diplomatic  correspondence  or  arbi- 
tration.^^ 

96.  Power  to  Meet  International  Responsibilities  by  Treaty. 

An  international  responsibility  may  occasionally  require  conclu- 
sion of  a  treaty.  Suffice  it  to  say  that  the  President,  acting  with 
advice  and  consent  of  two-thirds  of  the  senate,  is  authorized  to  make 
treaties  on  all  subjects  suitable  for  international  agreement.^^ 

29  Willoughby,  op.  cit.,  p.  1018,  and  Am.  Jl.  Int.  Law,  2:  357, 

30  Maine,  Int.  Law,  pp.  37-38,  quoted  in  Moore,  Digest,  i  :  7. 
^'^  Infra,  sees.  112-118. 

*2  Infra,  sec.  149. 
^^  Infra,  sec.  173. 


CHAPTER  XI. 

The  Power  to  Meet  International  Responsibilities  Through 
THE  Observance  of  International  Law. 

97.  Conditions  Favoring  the  Observance  of  International  Law. 
The  responsibility  of  the  nation  for  acts  of  government  organs 

imposes  a  duty  upon  every  organ  to  abstain  from  action  in  violation 
of  international  law  or  treaty.  This  responsibility  will  be  met  if 
every  independent  organ  of  government  is  careful  to  exercise  its  dis- 
cretionary power  in  accordance  with  this  duty,  consequently  there 
can  be  no  question  of  the  power  of  the  government  to  meet  this 
responsibility.  Is  it  probable  that  independent  organs  will  recog- 
nize international  law,  rather  than  national  policy,  as  a  proper  guide 
in  the  exercise  of  their  powers?  No  organ  is  in  fact  wholly  inde- 
pendent. The  government  is  a  complex  organization,  the  action  of 
each  organ  being  to  a  certain  extent  influenced  by  that  of  others. 
We  may,  therefore,  investigate  the  conditions  which  tend  to  assure 
the  observance  of  international  law  and  treaty  by  the  various  organs 
of  government  in  the  present  state  of  public  law. 

98.  Observance  of  International  Law  by  the  States. 

A  state  constitution  or  legislative  provision  in  violation  of  cus- 
tomary international  law  is  valid  unless  in  conflict  with  a  Federal 
constitutional  provision  or  an  act  of  Congress  as  would  usually  be 
the  case.  However,  it  appeared  in  1842  that  the  criminal  laws  of 
New  York  made  no  exception  in  favor  of  persons  entitled  to  im- 
munity under  international  law  and  the  United  States  had  no  means 
of  relieving  Alexander  McLeod  from  the  operation  of  those  laws,  al- 
though the  Secretary  of  State  admitted  the  responsibility  to  do  so 
under  international  law.  Congress  has  power  to  pass  legislation  assur- 
ing respect  for  international  law  by  the  states  and  such  legislation  was 
passed  soon  after  this  incident.^     If  a  state  law  disregards  a  treaty 


lAct  of  Aug.  29,  1842,  Rev.  Stat.,  sec.  753.     See  Moore,  Digest,  2 :  24-30. 

161 


162     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

it  is  void.  The  courts  both  federal  and  state  are  obhged  to  apply 
treaties  "  anything  in  the  Constitution  or  Laws  of  any  State  to  the 
Contrary  notwithstanding."  ^  Thus  state  confiscation  acts  were  held 
void  as  in  violation  of  the  treaty  of  peace  with  Great  Britain  of  1783 
and  many  other  state  statutes  discriminating  against  aliens  have  been 
similarly  invalidated.' 

99.  Observance  of  International  Law  by  the  Constitution. 

If  the  Constitution  proves  in  any  respect  in  violation  of  inter- 
national law  there  is  no  recourse  except  to  the  amending  process, 
but  in  view  of  the  generality  of  its  provisions,  a  conflict,  incapable 
of  reconciliation  by  interpretation,  is  not  likely  to  occur.  The  courts 
have  held  that  they  must  interpret  the  Constitution  in  accord  with 
international  law  if  possible  and  thus  have  protected  the  immunities 
of  diplomatic  officers  against  the  constitutional  clause  guaranteeing 
the  accused  a  right  "  to  have  compulsory  process  for  obtaining  wit- 
nesses in  his  favor."*  The  i8th  amendment  has  been  held  to  permit 
the  customary  exemption  from  search  of  the  baggage  of  diplomatic 
officers. 

100.  Observance  of  International  Law  by  Congress. 

The  observance  of  international  law  and  treaty  by  Congress  de- 
pends upon  the  discretion  of  that  body.  An  act  of  Congress  if  con- 
stitutional is  valid  within  the  United  States  even  though  in  direct 
violation  of  international  law  or  treaty  as  was  illustrated  by  the  Chi- 
nese exclusion  act  of  i! 


"  It  must  be  conceded,"  said  the  Supreme  Court,  "  that  the  act  of  1888 
is  in  contravention  of  express  stipulations  of  the  treaty  of  1868  and  of  the 
supplemental  treaty  of  1880,  but  it  is  not  on  that  account  invalid  or  to  be 


2  U.  S.  Constitution,  Art.  VI,  sec.  2. 

3  Ware  v.  Hylton,  3  Dall.  199.  On  this  case  see  Crandall,  op.  cit., 
pp.  154-160.  H.  St'.  George  Tucker,  Limitations  of  the  Treaty  Making 
Power,  Boston,  1915,  has  been  led  by  what  J.  B.  Moore  calls  an  "  appre- 
hensive" interpretation  of  the  Constitution  (Pol.  Sci.  Quar.,  32:  320)  to 
take  a  novel  view  of  this  case.  Crandall,  loc.  cit.,  effectively  deals  with  this 
interpretation.     See  also  infra,  sec.  50. 

*  See  cases  of  Dubois  and  Comancho,  Moore,  Digest,  4:  643-645; 
Wright,  Am.  Jl.  Int.  Law,  11:  5;  and  supra,  sec.  45. 


OBSERVANCE  OF  INTERNATIONAL  LAW.  163 

restricted  in  its  enforcement.  .  .  .  The  question  whether  our  government 
was  justified  in  disregarding  its  engagements  with  another  nation  is  not  one 
for  the  determination  of  tlie  courts.  .  .  .  The  court  is  not  the  censor  of  the 
morals  of  the  other  departments  of  the  Government."  ^ 

In  spite  of  the  protests  of  China,  the  act  remained  in  effect.  The 
same  was  true  of  the  act  of  Congress  exempting  American  vessels 
from  tolls  in  the  use  of  the  Panama  Canal.  Great  Britain  consid- 
ered the  act  in  disregard  of  the  Hay-Pauncefote  treaty  but  it  re- 
mained effective  until  repealed  by  Congress  itself,  at  the  solicita- 
tion of  President  Wilson  whose  judgment  "very  fully  considered 
and  maturely  formed "  found  it  "  in  plain  contravention  of  the 
treaty." « 

Congress  has  sometimes  made  express  exception  from  the  oper- 
ation of  statutes  out  of  deference  to  international  law.  Thus,  the 
various  acts  describing  rules  of  navigation  "  shall  not  be  construed 
as  applying  to  ships  of  war  or  to  government  ships." '''  The  se- 
lective draft  act  of  1917  as  amended  August  31, 1918,  exempted  for- 
eign consular  and  diplomatic  officers  from  registration  and  resident 
al'.ens  except  declarants  of  co-belligerent  nationality  from  service.' 
The  Supreme  Court  is  given  only  such  jurisdiction  of  cases  against 
foreign  diplomatic  officers  "  as  a  court  of  law  can  have  consistently 
with  the  law  of  nations."  °  An  act  of  1790  expressly  exempts  resi- 
dent "  public  ministers,"  their  "  domestics  and  domestic  servants  " 
and  their  "goods  and  chattels"  from  all  legal  process,^"  and  an  act 
of  1888  excepts  "the  ownership  of  legations,  or  the  ownership  of 
residences  by  representatives  of  foreign  governments  or  attaches, 
thereof  "  from  the  general  law  prohibiting  alien  landholding  in  the 
District  of  Columbia.^^  Frequently  Congress  has  shown  respect  for 
treaties  by  excepting  persons  entitled  to  treaty  privileges  from  the 
operation  of  statutes  or  by  making  the  operation  of  the  statute  de- 


5  Chinese  Exclusion  Cases,   130  L^.  S.  581    (iJ 
^Message,  March  5,  1914,  Cong.  Rec,  51:  4313. 

7  Act  Aug.  1,  1912,  sec.  5,  2)7  Stat.  242,  Comp.  Stat.,  sec.  7994. 

8  Acts  July  9,  1918,  and  Aug.  31,  1918,  amending  act  May  18,  1917,  sees. 
4,  5,  Comp.  Stat.,  sec.  2044b,  e. 

'^Rev.  Stat.,  687,  Judicial  Code  of  191 1,  sec.  233,  36  Stat.,   1156,  Comp. 
Stat,  sec.  1210. 

10  Rev.  Stat.,  4063,  Comp.  Stat.,  761 1. 

11  Act  March  9,  1888,  25  Stat.  45,  Comp.  Stat.,  sec.  3501. 


164     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

pendent  upon  denunciation  of  the  treaty  according  to  its  own  terms. 
Thus  certain  provisions  of  the  La  Follette  seaman's  act  were  to  re- 
main in  abeyance  until  conflicting  treaties  should  be  properly  ter- 
minated^^ and  acts  of  Congress  for  the  restoration  of  captured 
prizes/^  for  the  imposition  of  discriminatory  tariffs  or  import  pro- 
hibitions^* and  for  levying  tonnage  duties^^  and  for  prohibiting 
alien  landholding  in  the  territories  and  the  District  of  Columbia^^ 
were  not  to  apply  in  conflict  with  existing  treaties. 

loi.  Checks  upon  Congressional  Disregard  of  International  Law. 

Although  disregard  of  international  law  and  treaty  by  Congress 
is  prevented  primarily  by  that  body's  own  sense  of  international  re- 
sponsibility, the  Constitution  does  provide  certain  checks  against 
such  disregard.  The  treaty-making  power  may  conclude  a  treaty  or 
provide  for  an  arbitration  either  of  which  would  supersede  an  ear- 
Her  act  of  Congress.  Thus  the  act  of  Congress  of  1889  as  judi- 
cially interpreted  extended  American  jurisdiction  in  Behring  Sea, 
one  hundred  Italian  miles  from  shore,  in  disregard  of  the  principle 
of  international  law  limiting  maritime  jurisdiction  to  the  marine 
league.  This  act  was  held  to  be  superseded  by  the  arbitration  based 
on  a  treaty  with  Great  Britain  of  1892.^'^ 

The  President's  veto  has  proved  a  check  upon  congressional  dis- 
regard of  international  responsibilities.  Since  the  President  feels 
the  pressure  of  foreign  nations  he  is  likely  to  be  more  sensitive  to 
violations  of  international  law  than  the  houses  of  Congress.  Thus 
President  Hayes  vetoed  the  first  Chinese  exclusion  bill  as  in  viola- 
tion of  the  Burlingame  treaty  of  1868.     After  explaining  some  con- 


12  Act  March  4,  1915,  38  Stat.  1184,  sees.  16,  17;  Comp.  Stat.,  sec. 
8382a,  b. 

13  Rev.  Stat.,  sec.  4652;   Comp.  Stat.,  sec.  8426. 

1*  Underwood  tariff,  Oct.  3,  1913,  sec.  IV,  j,  sub.  sees,  i,  2,  7;  38  Stat. 
195,  196;  Comp.  Stat.,  5305,  5306,  531 1.  According  to  sec.  IV,  b,  38  Stat.  192, 
the  Cuban  reciprocity  treaty  of  1902  was  unaffected  by  the  tariff. 

15  Rev.  Stat.,  sec.  4227;  Comp.  Stat,  sec.  7820. 

16  Act  March  3,  1887,  24  Stat.  476,  March  2,  1897,  29  Stat.  618,  Comp. 
Stat.,  sees.  3490,  3498. 

17  La  Ninfa,  75  Fed.  513,   1896. 


OBSERVANCE  OF  INTERNATIONAL  LAW.  165 

stitutional  objections  to  the  act  he  referred  to  the  "  more  general 
considerations  of  interest  and  duty  which  sacredly  guard  the  faith 
of  the  nation,  in  whatever  form  of  obligation  it  may  have  been 
given,"  and  conckidcd  "in  asking  the  renewed  attention  of  Congress 
to  this  bill,  I  am  persuadad  that  their  action  will  maintain  the  public 
duty  and  the  public  honor."  "  President  Arthur  vetoed  the  second 
Chinese  exclusion  bill  for  similar  reasons.^''  The  President  may 
also  use  his  powers  of  persuasion  upon  Congress  to  cause  the  re- 
peal of  an  act  in  disregard  of  international  law  or  treaty  as  did 
President  Wilson  with  success  in  the  Panama  Canal  tolls  contro- 
versy.^" 

The  courts  are  bound  by  acts  of  Congress,  but  said  Chief  Jus- 
tice Marshall,  "  an  act  of  Congress  ought  never  to  be  construed  to 
violate  the  law  of  nations  if  any  other  possible  construction  re- 
mains." -^  With  this  principle  Marshall  construed  the  broad  juris- 
diction over  offenses  at  sea  conferred  by  various  acts  of  Congress 
as  confined  to  American  vessels  or  vessels  within  American  juris- 
diction as  defined  by  international  law.'-  It  seems  that  the  court 
neglected  an  opportunity  to  apply  this  principle  in  the  Behring  Sea 
cases  of  1S87,  a  neglect  which  may  have  been  partly  responsible  for 
the  expensive  and  futile  arbitration  later  entered  into.^^  In  the  case 
of  American  Banana  Co.  v.  United  Fruit  Co.,  however,  the  supreme 
court  applied  the  principle  by  interpreting  the  Sherman  Anti-Trust 
Act,  though  general  in  terms,  as  applying  only  within  the  jurisdic- 
tion of  the  United  States  as  defined  by  international  law." 


18  Richardson,  op.  cit.,  7:   519-520. 

i»  Message,   April  4,    1882,  ibid.,  8:    112. 

20  Supra,  note  6. 

21  Murray  v.  The  Charming  Betsey,  2  Cranch  64,  118,  1804. 

22  U.  S.  V.  Palmer,  3  Wheat.  610.  1818;  U.  S.  v.  Pirates,  U.  S.  v. 
Klintock,  U.  S.  v.  Holmes,  5  Wheat.  144,  152,  184,  200,  412,  1820. 

23  Infra,  sec.  107. 

2* "All  legislation  is  prima  facie  territorial,  words  having  universal 
scope,  such  as  every  contract  in  restraint  of  trade,  .  .  .  will  be  taken  as  a 
matter  of  course  to  mean  only  every  one  subject  to  such  legislation,  not  all 
that  the  legislator  may  subsequently  be  able  to  catch."  American  Banana 
Co.  V.  United  Fruit  Co.,  219  U.  S.  347,  1909.  See  also  Sandberg  v. 
McDonald,  248  U.  S.  185,  Am.  Jl.  Int.  Law,  13:  339. 


166     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

102.  Observance  of  International  Lazv  by  the  Treaty-making  Power. 
The  President  and  Senate  ought  not  to  make  treaties  in  disre- 
gard of  the  rights  of  third  states  under  international  law  or  earlier 
treaties  and  have  not  often  done  so.  Frequently  treaties  have  ex- 
pressly excepted  the  rights  of  third  states  under  existing  treaties  or 
general  international  law.  Thus  the  Hague  Conventions  on  war 
and  neutrality  by  their  own  terms  "  do  not  apply  except  between 
contracting  powers  and  then  only  if  all  the  belligerents  are  parties 
to  the  Convention.''  ^^  American  arbitration  treaties  have  usually 
excepted  from  the  scope  of  obligatory  arbitration  cases  "  concerning 
the  interests  of  third  parties  "  and  Article  25  of  the  Jay  treaty  with 
Great  Britain  of  1794  expressly  provided  that  "nothing  in  this  treaty 
contained  shall  ...  be  construed  or  operate  contrary  to  former  and 
existing  public  treaties  with  other  sovereigns  or  states."  If  there  is 
a  conflict,  however,  the  later  treaty  is  valid  as  municipal  law  until 
superseded  by  another  treaty  or  an  act  of  Congress. ^^ 

But,  as  in  the  case  of  acts  of  Congress,  courts  attempt  to  con- 
strue treaties  in  accord  with  the  rights  of  third  states.  Thus  they 
gave  a  very  narrow  construction  to  the  special  privileges  in  Amer- 
ican ports  given  to  French  privateers  and  war  vessels  by  the 
treaty  of  1778,  out  of  respect  for  the  British  right  to  demand  from 
a  neutral  state  impartiality  in  regulating  the  use  of  its  ports.^^ 

103.  Observance  of  International  Law  by  the  President. 

The  President  might  recognize  a  state  or  government  or  an  ac- 
quisition of  territory  in  disregard  of  international  law,  or  proclaim 
neutrality  in  desregard  of  a  treaty  of  alliance  or  wrongfully  inter- 
vene in  a  foreign  state,  and  his  act  would  be  followed  by  the 
courts.^^  There  is  no  guarantee  that  the  President  will  exercise  his 
discretionary  powers  in  accord  with  international  law  and  treaty, 

25  See  also  League  of  Nations  Covenant,  Art.  20. 

26  Belcher  v.  Darrell,  Fed.  Cas.  1607,  1795 ;  The  Phoebe  Ann,  3  Dall. 
319.  See  also  Wright,  Conflicts  between  International  Law  and  Treaties, 
Am.  Jl.  Int.  Law,  11:  566  et  seq.   (July,  1917). 

27  The  Phoebe  Ann,  supra.  Wright,  op.  cit.,  pp.  574-5 ;  Moore,  Digest, 
5:   591-598. 

28  Infra,   sec.    107. 


OBSERVANCE  OF  INTERNATIONAL  LAW.  167 

except  his  own  sense  of  international  responsibility  and  a  fear  of  a 
possible  impeachment.^*  Congress  has  passed  laws  defining  and 
limiting  the  purposes  for  which  the  army,  navy  and  militia  may  be 
used,  but  the  validity  of  such  legislation,  except  as  applied  to  the 
militia,  has  been  questioned.^" 

104.  Observance  of  International  Law  by  Military  and  Civil  Ser- 
vices. 

Usually,  however,  the  President  is  obliged  to  act  through  serv- 
ices which  are  subject  to  control  by  acts  of  Congress  and  judicial 
processes.  Congress  has  provided  for  the  organization  of  the 
diplomatic,  consular,  naval,  military  and  administrative  services 
but  has  not  generally  attempted  to  regulate  their  conduct  in  detail. 
A  few  statutory  regulations  are  designed  to  assure  observance  of 
international  law  by  public  officers  of  which  may  be  mentioned  that 
forbidding  ministers  to  give  information  relating  to  the  affairs  of 
the  foreign  state  to  which  they  are  accredited  except  to  the  De- 
partment of  State,^^  that  forbidding  administrative  officers  from 
serving  process  on  resident  diplomatic  officers  and  others  entitled  to 
immunity  under  international  law,^^  that  forbidding  the  injury  or 
destruction  of  prizes  or  maltreatment  of  those  on  board  by  naval 
forces,^^  and  that  requiring  the  restoration  of  recaptured  prizes 
originally  the  property  of  neutral  individuals  on  the  principle  of 
reciprocity.^* 

These  services  are  regulated  in  detail  by  executive  regulations 
and  instructions,  which,  though  issued  by  and  subject  to  alteration 
by  the  President,  in  fact  furnish  a  fairly  permanent  law  for  their 
guidance.     These    regulations    have   usually   enjoined    a    strict   ob- 


29  Impeachment  lies  for  moral  and  political  offenses  as  well  as  crimes  in 
the  legal  sense.  Willoughby,  op.  cit.,  p.  1124.  See  also  Corwin,  John  Mar- 
shall and  the  Constitution,  p.  78. 

3°  Infra,  sec.  125. 

31  Act  Aug.  18,  1850,  Rev.  Stat.,  sec.  1751. 

32  Rev.  Stat.,  sec.  4063,  Comp.  Stat.,  sec.  7611. 

33  Articles  for  Government  of  the  Navy,  Rev.  Stat.,  sec.  1624,  Arts.  6,  11, 
12.  See  also  Rev.  Stat.,  sec.  4617,  Comp.  Stat.,  sec.  8397,  and  Wright,  En- 
forcement of  International  Law  through  Municipal  Law,  pp.   183  et  seq. 

"Rev.  Stat.,  sec.  4652,  Comp.  Stat.,  sec.  8426, 


168     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

servance  of  international  law  and  treaty.  The  "  Diplomatic  In- 
structions," "  Consular  Regulations,"  "  Rules  of  Naval  Warfare " 
and  "  Rules  of  Land  Warfare,"  each  a  volume  officially  issued  from 
time  to  time,  are  largely  codifications  of  international  law  and  treaty 
provisions.^^  The  permanent  army  regulations  forbid  armed  forces 
passing  into  foreign  territory  without  license,  and  army  officers 
are  required  to  observe  proper  formalities  in  dealing  with  the  rep- 
resentatives of  foreign  governments.^^  The  permanent  navy  regu- 
lations require  naval  commanders  "  scrupulously  to  respect  the 
territorial  authority  of  foreign  civilized  nations  in  amity  with  the 
United  States,"  to  observe  local  regulations  on  entering  foreign 
jurisdiction,  to  exchange  the  proper  salutes  when  meeting  foreign 
public  vessels,  to  refuse  asylum  to  criminals,  slaves  and  political 
refugees  while  in  foreign  ports,  to  observe  strict  neutrality  in  wars 
to  which  the  United  States  is  not  a  party,  and  "  when  the  United 
States  is  at  war,  the  Commander-in-Chief  shall  require  all  under 
his  command  to  observe  the  rules  of  humane  warfare  and  the 
principles  of  international  law."  ^^  Treasury  regulations  have  re- 
quired customs  officials  to  respect  the  immunities  of  diplomatic 
officers.^® 

The  diplomatic  and  consular  regulations  are  enforced  by  the 
President's  disciplinary  control  and  power  of  removal  and  by  statu- 
tory provisions  for  bonding  and  criminal  liability  enforced  by  the 
courts.^"  Military  and  naval  regulations  and  instructions  are  en- 
forced by  courts  martial  whose  jurisdiction,  however,  is  largely  con- 
fined to  the  statutory  articles  of  war,  and  by  military  commissions. ■*" 

*5  See  Wright,  op.  cit.,  p.  68. 

38  Army  Regulations,  1913,  sees.  398,  407,  889,  ch.  3;  Digest  of  Opinions 
of  Judge  Ad.  Gen.,  1912,  Rowland  ed.,  pp.  90,  106. 

37  Navy  Regulations,  1913,  sees.  1502,  1633-35,  1645-47.  Naval  com- 
manders are  allowed  some  discretion  under  these  regulations.  See  note  at 
head  of  Chap.  15,  Navy  Reg.,  1913,  p.  159,  r.  For  case  in  which  Navy 
regulations  were  enforced  against  a  commander  see  Moore,  Digest,  i :  240- 
241.     See  Wright,  op.  cit.,  68,  126,  177,  213. 

38  Moore,  Digest',  4 :  676. 

39  Wright,  op.  cit.,  p.  69. 

^o  Navy,  see  Rev.  Stat.,  sec.  1624,  Arts.  22,  24,  26,  38,  and  Wright, 
op.  cit.,  p.  68,  177.  Army,  see  Rev.  Stat.  sees.  1342-1343,  Lieber's  Instructions, 
Gen.  Ord.  100,  1863,  art.  13;  Digest  of  Opinions  of  Judge  Ad.  Gen.  1912,  p. 
1067;  Wright,  op.  cit.,  p.  210. 


OBSERVANCE  OF  INTERNATIONAL  LAW.  169 

The  federal  courts,  in  exercising  prize  jurisdiction,  exercise  a  con- 
siderable control  over  the  navy  in  time  of  war.  They  not  only 
return  captured  vessels  and  cargoes  not  liable  to  condemnation 
under  international  law,*^  but  decree  damages  against  naval  officers 
for  illegal  captures.*^  They  exercise  a  similar  jurisdiction  over 
captured  vessels  in  time  of  peace,  and  may  thus  prevent  illegal 
seizures  upon  the  high  seas  or  in  foreign  territorial  waters  by  vessels 
of  the  navy  or  revenue  cutter  service.^^  In  such  cases,  however, 
the  courts  sometimes  refuse  relief  on  the  ground  that  the  question 
is  political.'**  Although  the  courts  exercise  less  control  of  the  army 
than  of  the  navy  in  time  of  war,  yet  they  may  give  relief  in  case  mili- 
tary action  violates  property  rights  protected  by  international  law. 
Thus  in  Mitchell  v.  Harmony*^  the  court  applied  international  law  to 
determine  the  right  of  military  officers  to  confiscate  enemy  property 
in  the  occupied  territory  of  Mexico  and  in  Brown  v.  the  United 
States**  the  court  refused  to  confiscate  enemy  property  in  American 
territory  holding  that  international  law  regarded  such  confiscation 
with  disfavor  and  the  court  could  not  permit  it  unless  authorized 
by  an  express  act  of  Congress.  In  other  cases  the  courts  have  held 
that  the  President's  power  in  conducting  war  is  limited  by  interna- 
tional law  and  any  action  he  may  authorize  contrary  to  that  law  is 
void.  Congress  alone  can  authorize  military  methods  conflicting 
with  international  law  and  as  we  have  seen  the  courts  will  not 
presume  such  a  conflict.*^ 

"The  Nereide,  9  Cranch  388;  The  Paquette  Habana,  175  U.  S.  677. 

*2  Little  V.  Barreme,  2  Cranch  170. 

*3  La  Jeune  Eugenie,  2  Mason  409,  1822;  Rose  v.  Himeley,  4  Cranch  241; 
Hudson  V.  Guestier,  6  Cranch  281,  1810;  The  Marianna  Flora,  11  Wheat,  i, 
1826;  The  Antelope,  10  Wheat.  66,  122,  1825;  La  Ninfa,  75  Fed.  513,  1896. 

4*  Ship  Richmond  v.  U.  S.,  9  Cranch  102,  104,  1815 ;  Davisson  v.  Seal- 
skins, 2  Paine  324;   Moore,  Digest,  2:  364-365,  and  supra,  sec.   107. 

*5  Mitchell  v.  Harmony,  13  How,  115. 

48  Brown  v.  U.  S.,  8  Cranch  no.  See  also  McVeigh  v.  U.  S.,  11  Wall. 
259,  1870,  in  which  the  court  relaxed  the  rule  which  permits  an  alien  enemy 
no  status  in  court  and  permitted  him  to  defend,  and  Wright,  Am.  Jl.  Int.  Law, 
11:  19. 

47  Mitchell  V.  Harmony,  13  How.  115;  Miller  v.  U.  S.,  11  Wall.  268; 
Fleming  v.  Page,  9  How.  603;  Willoughby,  op.  cit.,  p.  1196,  says:  "With 
respect  to  the  persons  and  property  of  the  enemy,  however,  he  (the  military 


170     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

105.   Observance  of  International  Law  by  the  Courts. 

Judicial  action  may  give  grounds  for  international  complaint  in 
case  justice  is  denied  to  aliens  by  the  courts  in  civil  or  criminal 
trials  and  in  case  international  law  or  treaty  are  not  applied  in  cases 
affecting  aliens  or  foreign  governments.*^  The  guarantees  of  "  due 
process  of  law  "  to  all  persons  in  the  United  States  by  the  Vth  and 
XlVth  amendments  are  applicable  respectively  against  the  national 
and  state  governments,  and  in  both  federal  and  state  courts.  To- 
gether with  other  more  specific  constitutional  guarantees  relating 
especially  to  criminal  trials,  they  seem  to  assure  aliens  a  procedure 
and  an  absence  of  unreasonable  discrimination  in  the  law  applied, 
sufficient  to  prevent  a  '*  denial  of  justice "  as  understood  in  inter- 
national law. 

However,  the  alien  may  feel  greater  confidence  in  federal  than 
in  state  courts  because  of  the  decreased  chance  of  local  prejudice. 
Under  present  statutes  he  is  entitled  to  bring  action  against  citizens 
in  civil  cases  in  the  federal  district  court  if  over  $3,000  is  in  contro- 
versy or  if  "  for  tort,  only  in  violation  of  the  laws  of  nations  or  of 
a  treaty  of  the  United  States."*''  Ambassadors  and  consuls  of 
foreign  governments  are  entitled  to  bring  suits  originally  in  the 
Supreme  Court,  though  they  may  also  sue  in  the  state  courts.  They 
may  be  sued,  however,  only  in  the  federal  courts,  and  diplomatic 
officers  only  in  the  Supreme  Court  and  then  only  so  far  as  the  law 
of  nations  permits.^" 


commander)  is  subject'  only  to  the  limitations  which  the  laws  of  war,  as 
determined  by  international  usage,  supply,  and  for  violations  of  these  he 
is  responsible  only  to  the  military  tribunals."  But  on  page  1212  he  says: 
"  Indeed,  the  President,  in  the  exercise  simply  of  his  authority  as  commander- 
in-chief  of  the  army  and  navy,  may,  unless  prohibited  by  congressional  stat- 
ute, commit  or  authorize  acts  not  warranted  by  commonly  received  principles 
of  international  law."  Sutherland,  however  (op.  cit.,  p.  jy),  says:  "The 
usages  and  laws  of  war  alone,  and  not  the  Constitution  of  the  United 
States,  fix  the  limits  "  of  the  President's  authority  in  conducting  military  op- 
erations. See  also  British  case  of  the  Zamora,  L.  R.  1916,  2  A.  C.  77, 
holding  an  order  in  council  contrary  to  international  law  void;  Wright,  Am. 
Jl.  Int.  Lazv,  11:2,  and  supra,  sec.  47. 

*^  Borchard,  op.  cit.,  p.  335. 

4»  Judicial  code  of  1911,  sec.  24,  pars,  i,  17,  z^*  Stat.  1091,  1093. 

^0  Ibid.,  sec.  24,  par.  18,  sec.  222, ;  sec.  256,  par.  8. 


OBSERVANCE  OF  INTERNATIONAL  LAW.  171 

Any  alien  not  resident  in  the  state  may  have  an  action  brought 
against  him  in  a  state  court,  removed  to  a  federal  district  court  if 
it  is  of  a  type  which  might  have  originated  in  that  court.  If 
"  from  prejudice  or  local  influence  he  will  not  be  able  to  obtain 
justice  "  in  the  state  court,  he  may  have  any  suit  removed.^^  Any 
alien  may  also  have  the  case  removed : 

"  In  any  civil  suit  or  criminal  prosecution  commenced  in  any  State 
court  for  any  cause  whatsoever,"  if  he  "  is  denied  or  can  not  enforce  in  the 
judicial  tribunals  of  the  State,  or  in  the  part  of  the  State  where  such  suit 
or  prosecution  is  pending,  any  right  secured  to  him  by  any  law  providing 
for  the  equal  civil  rights  ...  of  all  persons  within  the  jurisdiction  of  the 
United  States."  ^2 

Finally,  any  person  who  can  show  a  federal  court  under  habeas 
corpus  that  he  is  entitled  to  immunity  under  international  law  or 
treaty  may  be  released  from  the  state  court. ^^ 

io6.  Courts  Apply  International  Law  and  Treaties  as  Part  of  the 
Law  of  the  Land. 
The  courts  regard  international  law  as  part  of  the  law  of  the 
land  and  apply  it  in  suitable  cases. 

"  International  law,"  said  Justice  Gray,  "  is  a  part  of  our  law,  and 
must  be  ascertained  and  administered  by  the  courts  of  justice  of  appropriate 
jurisdiction,  as  often  as  questions  of  right  depending  upon  it  are  duly  pre- 
sented for  their  determination.  For  this  purpose,  where  there  is  no  treaty, 
and  no  controlling  executive  or  legislative  act  or  judicial  decision,  resort 
must  be  had  to  the  customs  and  usages  of  civilized  nations;  and,  as  evidence 
of  these,  to  the  works  of  jurists  and  commentators,  who,  by  years  of 
labor,  research,  and  experience,  have  made  themselves  peculiarly  well  ac- 
quainted with  the  subjects  of  which  they  treat.  Such  words  are  resorted  to 
by  judicial  tribunals,  not  for  the  speculations  of  their  authors  concerning 
what  the  law  ought  to  be,  but  for  trustworthy  evidence  of  what  the  law 
really  is."  '** 

This  principle  has  been  applied  in  admiralty  and  prize  cases ;  °^  in 
cases   involving  the   immunities   of   sovereigns,   diplomatic   officers, 

"^  Ibid.,  sec.  28. 
''2  Ibid.,  sec.  31. 
^^  Supra,  note  i. 

5*  The  Paquette  Habana,  175  U.  S.  677.  See  also  Willoughby,  op  cit., 
1014-1018. 

^5  Ibid.,  and  also  The  Nereide,  9  Cranch  388. 


172     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

public  vessels,  military  persons,  consuls,  etc. ;  ^^  in  cases  involving 
the  limits  of  jurisdiction,  especially  in  boundary  rivers,  bays,  etc,  ;^'^ 
in  cases  involving  the  status  of  aliens  and  especially  alien  enemies ;  ^* 
in  cases  involving  the  rights  of  persons  in  newly  acquired  terri- 
tory ;  ^^  and  in  cases  involving  the  privileges  and  responsibilities  of 
neutrality,  war  and  insurgency.^"  Under  the  terms  of  Article  VI 
of  the  Constitution  treaties  are  the  supreme  law  of  the  land  and 
after  proclamation  are  applicable  by  all  courts,  state  and  federal. 

107.  TJiis  Principle  not  Applicable  to  Political  Questions. 

The  principle,  however,  that  courts  apply  international  law 
and  treaty  in  appropriate  cases  is  subject  to  certain  modifications. 
Thus  if  the  controversy  involves  "a  political  question"  the  courts 
hold  that  they  must  follow  the  decision  of  the  political  organs,  ir- 
respective of  international  law  and  treaty. "^^  But  no  definite  line 
has  ever  been  drawn  between  principles  of  international  law  and 
treaty  provisions  which  are  of  a  political  character  and  those  which 
are  of  a  legal  character.  In  such  matters  as  the  annexation 
or  cession  of  territory,"^  the  recognition  of  insurgency,*'^  belliger- 
ency,*'* new  governments,"^  new  states,*'"  the  termination  of  treaties,"^ 


58  The  Exchange  v.  McFaddon,  7  Cranch  116;  Underhill  v.  Hernandez, 
168  U.  S.  250. 

^^  The  AppoUon,  9  Wheat.  362. 

58  McVeigh  v.  U.  S.,  11  Wall.  259.  1870;  Watts  v.  Unione  Austriaca  de 
Navigazione,  248  U.  S.  9   (1918). 

5''U.  S.  V.  Percheman,  7  Pet.  51;  Villas  v.  City  of  Manila,  220  U.  S.  345, 
1911. 

""The  Santissima  Trinidad,  7  Wheat.  283;  The  Three  Friends,  166  U.  S. 
i;  The  Appam,  2,7  Sup.  Ct.  2>i7- 

^^Crandall,  op.  cit.,  364-370;  Willoughby,  op.  cit.,  999-101 1;  Moore,  Di- 
gest, 1 :  245,  744. 

02  Jones  V.  U.  S.,  137  U.  S.  202,  212-213,  1890;  Williams  v.  Suffolk  In- 
surance Co.,  13  Pet.  415;  Foster  v.  Neilson,  2  Pet.  253;  In  re  Cooper,  138 
U.  S.  404;  U.  S.  z>.  Reynes,  9  How.  127. 

"SThe  Three  Friends,  116  U.  S.  i,  63,  1897;  Kennett  v.  Chambers,  14 
How.  38. 

«*U.  S.  V.  Palmer,  3  Wheat.  610;  The  Divina  Pastora,  4  Wheat.  52; 
The  Santissima  Trinidad,  7  Wheat.  283 ;  The  Prize  Cases,  2  Black  635. 

«5The  Sapphire,  11  Wall.  164,  1870,  Oetjen  v.  Central  Leather  Co.,  246 
U.  S.  297,  1917,  Ricaud  V.  American  Metal  Co.,  246  U.  S.  304,  1917.  The 
recognition  of  a  particular  person  as  diplomatic  representative  of  a  foreign 
government  is  also  a  political  question,  Ex  parte  Baiz,  135  U.  S.  403. 


OBSERVANCE  OF  INTERNATIONAL  LAW.  173 

and  of  war/®  the  courts  ordinarily  follow  the  decisions  of  the  politi- 
cal organs.  Sometimes,  however,  no  definite  decision  has  been 
given  by  those  organs.  In  such  cases,  the  courts,  holding  that  they 
"  have  no  more  right  to  decline  the  jurisdiction  which  is  given  than 
to  usurp  that  which  is  not  given,"  ^^  have  investigated  facts  and 
international  law  giving  a  decision  thereon,  always  attempting,  but 
sometimes  without  complete  success,  to  avoid  decision  on  questions 
of  policy.  Thus  the  Supreme  Court  decided  upon  the  status  of 
Pine  Island  near  Cuba  and  upon  the  status  of  Cuban  insurgents  in 
1896  on  the  basis  of  international  law,  generally  known  facts  and 
various  rather  indefinite  statements  in  executive  proclamations  and 
correspondence.'^"  Very  often  international  law  is  utilized  by  the 
courts  to  buttress  opinions  founded  primarily  on  decisions  by  the 
political  organs  of  government.  Thus  the  Supreme  Court  not  only 
held  that  the  United  States  had  taken  possession  of  the  island  of 
Navassa  by  executive  proclamation  under  an  act  of  Congress  but  that 
under  international  law  it  was  entitled  to  do  so  on  the  principle  of  dis- 
covery and  occupation.'^^  Where  international  questions,  even  if  of 
political  significance,  are  susceptible  of  exact  determination  by  appli- 
cation of  international  law  the  courts  do  not  hesitate  to  settle  them. 
Prize  cases  are  of  this  kind,  so  also  arc  cases  involving  the  im- 
munities of  sovereigns,  diplomatic  officers  and  public  vessels.^^ 


"The  Nereide,  9  Cranch  388,  1815;  Cherokee  Nation  v.  Georgia,  5  Pet. 
I ;  Neeley  v.  Henkel,   180  U.  S.  109,  1901. 

8T  Doe  V.  Braden,  16  How.  635;  Terlinden  v.  Ames,  184  U.  S.  270; 
Willoughby,  op.  cit.,  1007,  infra,  sec.  182. 

68  The  Protector,   12  Wall.  700,  1871. 

«9/n  re  Cooper,  143  U.  S.  472,  502-505,  1892;  Moore,  Digest,  i :  744,  infra, 
sec.  247. 

"0  Pearcy  v.  Stranahan,  205  U.  S.  257   (1907);  The  Three  Friends,   166 

U.  S.  I. 

■^1  Jones  V.  U.  S.,  137  U.  S.  202,  212.  The  British  court  of  Queens  Bench 
(Mighell  V.  Sultan  of  Johore,  1894,  i  Q.  B.  149,  158),  however,  thought  the 
opinion  of  the  appropriate  political  department  incapable  of  examination  and 
questioned  the  course  pursued  by  Sir  Robert  Phillimore  in  the  Charkieh 
(L.  R.  4  A.  and  E.,  59,  1873),  in  examining  the  history  of  Egypt  since  A.  D. 
638  to  determine  its  status.  See  A.  D.  McNair,  Judicial  Recognition  of  States 
and  Governments,  British  Year  Book  of  International  Law,  2:  57,  66. 

■^2  Supra,  sec.   106. 


l"^     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

It  seems  that  far  from  encroaching  upon  powers  of  the  political 
departments  of  government  the  courts  have  if  anything  been  over- 
cautious. It  would  seem  that  a  decision  founded  squarely  upon 
international  law  might  well  have  been  given  in  the  first  Behring 
Sea  cases,  and  had  such  been  done  the  United  States  might  have 
avoided  the  expense  of  a  protracted  litigation  and  arbitration  where 
from  the  first  there  was  no  reasonable  legal  defense.  An  act  of 
1868"  had  forbidden  the  killing  of  "  otter,  mink,  marten,  or  fur- 
seal,  or  other  fur-bearing  animal,  within  the  limits  of  Alaska  terri- 
tory, or  in  the  waters  thereof."  The  Treasury  Department  in  enforc- 
ing this  provision  acted  upon  a  claim  asserted  by  Russia  in  1821  to 
a  jurisdiction  beyond  the  three-mile  limit  in  Behring  Sea,'^*  but 
when  the  question  of  definition  came  before  Congress  a  bill  de- 
finitely approving  the  extended  jurisdiction  was  not  passed,  the  act 
of  1889  merely  asserting  that  the  earlier  statute  should  "  include  and 
apply  to  all  the  dominions  of  the  United  States  in  the  waters  of 
Behring  Sea,"  thus  leaving  open  the  question  of  the  extent  of  these 
waters. '^^  The  district  court  in  Alaska,  however,  affirmed  by  the 
Supreme  Court,  held  that  the  political  departments  had  decided  for 
the  wider  jurisdiction  and  that  Canadian  vessels  captured  while  seal 
fishing  sixty  miles  from  shore  were  liable.'^''  It  would  seem  that 
under  the  circumstances,  the  courts  might  well  have  held  the 
statutes  to  imply  an  invitation  for  judicial  decision  based  on  inter- 
national law.  After  the  arbitration  of  1893  had  declared  unequivo- 
cally for  the  three-mile  limit,  the  Circuit  Court  of  Appeals  held  that 
the  act  of  1889  must  be  interpreted  accordingly.'^^ 

108.  This  Principle  not  Applicable  to   Cases  Covered  by   Written 
Law. 
Apart  from  political  questions  courts  are  bound  by  plain  terms 
of  the  Constitution,  by  treaties,  by  acts  of  Congress,  and  by  executive 

73  Act  June   17,  1868,  Rev.  Stat.,  sec.  1856. 

''*  Moore,  Int.  Arb.,  p.  769. 

"Act  March  2,  1889,  25  Stat.  1099;  Moore,  Int.  Arb.,  p.  765. 

■^'U.  S.  v.  La  Ninfa,  49  Fed.  575,  1891 ;  In  re  Cooper,  143  U.  S.  472, 
502-505. 

^^  U.  S.  z'.  La  Ninfa,  75  Fed.  513.  As  a  result  of  the  arbitration  the 
United  States  paid  Great  Britain  $473,151.26  as  indemnity  for  the  seizures. 
See  Moore,  Digest,  i  :  890-929,  and  Int.  Arb.,  pp.  765-960. 


OBSERVANCE  OF  INTERNATIONAL  LAW.  175 

orders  under  authority  thereof,  in  spite  of  principles  of  interna- 
tional law  and  earlier  treaties.  They,  however,  attempt  to  inter- 
pret such  documents  in  accord  with  international  law,  frequently 
with  success,^^  and  they  refuse  to  apply  state  constitutions  and 
statutes  in  conflict  with  treaty.'^® 

In  general  the  courts  do  apply  international  law  and  treaty,  and 
because  of  the  opportunity  for  a  careful  consideration  of  the  sources 
and  reason  of  that  law  which  their  deliberate  methods  afford,  they 
assure  the  application  of  international  law  in  cases  not  covered  by 
written  law.  Through  their  powers  of  nullifying  state  laws  in  con- 
flict with  treaty  and  of  interpreting  acts  of  Congress  and  of  the 
President,  they  minimize  the  probability  of  disregard  by  other 
organs  of  the  government. 

78  Murray  v.  The  Charming  Betsey,  2  Cranch  64,  and  see  Wright,  Con- 
flicts of  International  Law  with  National  Laws  and  Ordinances,  Am.  Jl. 
Int.  Law,  11:  I  et  seq.  (Jan.,  1917). 

79  Ware  v.  Hylton,  3  Dall.  199,  and  supra,  note  3. 


CHAPTER  XII. 

The  Power  to  Meet  International  Responsibilities  through 
THE  Enforcement  of  International  Law. 

109.  "Due  Diligence." 

The  responsibility  of  the  nation  for  acts  or  omissions  of  individ- 
uals within  its  jurisdiction  requires  all  organs  of  government  to  use 
"  due  diligence "  to  preserve  order  and  to  prevent  violations  of 
international  law  and  treaty  by  persons  within  its  jurisdiction. 
While  the  responsibility  discussed  in  the  preceding  chapter  relates 
only  to  the  conduct  of  public  officials  and  hence  will  be  met  if 
officials  consistently  observe  the  limitations  prescribed  for  them 
by  international  law  and  treaties  in  exercising  their  powers,  this 
responsibility  relates  primarily  to  the  conduct  of  private  individuals. 
The  conduct  of  public  officials  is,  however,  indirectly  involved,  inas- 
much as  the  nation  will  be  responsible  if  they  neglect  proper  meas- 
ures to  compel  individuals  within  their  jurisdiction  to  observe  these 
limitations.  The  government  is  supposed  to  enforce  law  and  main- 
tain order  with  reasonable  efficiency  within  its  jurisdiction  and  is 
responsible  for  failure  to  do  so.  A  lack  of  "due  diligence"  is 
the  expression  used  to  describe  the  degree  of  negligence  which 
justifies  a  claim  founded  on  failure  to  meet  this  responsibility. 

While  it  is  the  judicial  and  executive  organs  of  government 
which  operate  directly  on  individuals,  often  these  organs  must  be 
authorized  to  act  by  legislation  or  treaty.  Consequently  any  of 
the  departments  may  be  obliged  to  exercise  their  powers  if  this 
responsibility  is  to  be  met.  The  decision  of  the  Geneva  Arbitra- 
tion Tribunal  in  the  Alabama  Claims  case  made  this  point  clear. 
"The  Government  of  Her  Britannic  Majesty,"  said  the  court,  "can- 
not justify  itself  for  a  failure  in  due  diligence  on  pleas  of  in- 
sufficiency of  the  legal  means  of  action  which  it  possesses."^ 


1  Malloy,  Treaties,  p.  719. 

176 


ENFORCEMENT  OF  INTERNATIONAL  LAW.  177 

Defining  due  diligence  the  Tribunal  said  :  ^ 

"  The  due  diligence  referred  to  in  the  first  and  third  of  the  said  rules  (of 
Article  V  of  the  Treaty  of  Washington)  ought  to  be  exercised  by  a  neutral 
government  in  exact  proportion  to  the  risks  to  which  either  of  the  belligerents 
may  be  exposed  from  a  failure  to  fulfill  the  obligations  of  neutrality  on 
their  part." 

The  XIII  Hague  Convention  of  1907  in  Articles  8  and  25  practically 
repeated  the  first  and  third  rules  of  the  treaty  of  Washington  but 
substituted  the  phrase  "  means  at  its  disposal "  for  "due  diligence." 
The  drafting  committee  of  the  Hague  Convention  merely  noted 
that  "  The  expression  due  diligence,  which  has  become  celebrated 
by  its  obscurity,  since  its  solemn  interpretation,  has  been  omitted."' 
Apparently  no  essential  difiference  in  meaning  was  intended. 
"  Means  at  its  disposal "  do  not  mean  merely  those  provided  by 
existing  legislation  but  those  which  the  legislature  ought  to  provide. 
In  spite  of  the  committee's  disparaging  remark,  the  term  "  due 
diligence "  has  continued  in  usage.* 

no.  Enforcement  by  the  States. 

The  states  retain  full  power  of  criminal  legislation  except  as 
expressly  or  impliedly  limited  by  the  federal  Constitution.  Before 
the  Constitution  the  states'  powers  in  this  regard  were  almost  ex- 
clusive and  Congress  urged  them  to  provide  for  the  punishment  of 
offenses  against  the  law  of  nations.  In  1784  the  court  of  oyer  and 
terminer  of  Philadelphia  found  one  DeLongchamps  guilty  of  "  a 
crime  against  the  whole  world  "  for  committing  an  assault  upon  the 
Secretary  of  the  French  legation.^  The  court  declared  the  person 
of  a  public  minister  and  his  "  comites  "  or  household  "  sacred  and 
inviolable."  "  Whoever,"  said  the  court,  "  offers  any  violence  to 
him  not  only  affronts  the  sovereign  he  represents  but  also  hurts 
the  common  safety  and  well-being  of  nations."  The  court  found 
difficulty  in  awarding  sentence  and  finally  concluded  "  the  defend- 
ant   cannot    be    imprisoned    until     his    most     Christian     Majesty 

^  Ibid.,  p.  718;  Moore,  Int.  Arb.,  p  4082. 

3  Scott,  ed..  Reports  of  Hague  Conferences,  p.  845. 

*  Borchard,  op.  cit.,  p.  278. 

''Res  Publica  v.  DeLongchamps,  i  Dall'.  Ill;  Moore,  Digest,  4:  622. 


178     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

shall  declare  that  the  reparation  is  satisfactory."  Apparently  a  de 
facto  incarceration  without  formal  sentence  of  imprisonment,  which 
if  given  at  all  would  have  to  be  "certain  and  definite,"  seemed  the 
only  way  of  satisfying  the  dilemma  arising  from  the  court's  theory 
that  it  was  not  only  administering  Pennsylvania  law  but  also  inter- 
national law  and  that  in  this  case  the  latter  left  determination  of 
the  sentence  to  the  offended  king  of  France.  This  theory,  derived 
from  the  claim  by  France  of  a  right  herself  to  punish  offenders 
against  her  diplomatic  representatives  abroad,  and  supported  by 
a  similar  claim  of  the  Czar  in  the  case  of  his  Ambassador  in  London 
in  1708,  is  now  obsolete. 

Since  adoption  of  the  Constitution,  the  enforcement  of  inter- 
national law  has  been  largely  undertaken  by  the  national  govern- 
ment and,  where  undertaken,  the  jurisdiction  of  federal  courts  has 
been  made  exclusive.^  This  does  not  mean,  however,  that  states 
are  prohibited  from  making  acts,  violative  of  international  law  or 
treaty,  offenses  against  their  own  sovereignty.'^  The  grant  of 
powers  of  criminal  legislation  to  the  National  government  by  the 
Constitution  or  even  the  exercise  of  such  powers  by  Congress  does 
not  in  itself  divest  the  states  of  power  to  punish  similar  offenses. 
States  may  cooperate  with  the  United  States  in  enforcing  interna- 
tional law  and  treaty  within  their  own  boundaries  so  far  as  such 
action  does  not  interfere  with  national  action.  They  cannot,  how- 
ever, perfo'-m  acts  for  this  purpose,  which  will  be  effective  out- 
side their  borders.  Thus  state  authorities  cannot  extradite  per- 
sons to  foreign  governments  on  the  basis  of  national  treaties,*  unless 
expressly   authorized   thereto   by   the   treaty.^ 

A  few  offenses  against  international  law  and  treaty  are  still  un- 
touched by  national  laws,  and  the  states  must  be  relied  on.  Thus 
Secretary  Bayard,  after  noting  that  national  law  did  not  punish 
"treason  and  sedition  against  foreign  sovereigns,"  said :  ^^ 

^Judicial  Code  of  191 1,  sec.  256,  pars.  1-4,  8. 
^  Fox  V.  Ohio,  5  How.  416  (1847). 

« Holmes  v.  Jennison,  14  Pet.  540,  579  (1840);  U.  S.  v.  Rauscher,  119 
U.  S.  407,  414;  Moore,  Digest,  4:  240  et  seq. 

8  See  Mexican  treaty,  1899,  art.  19;  Moore,  Digest,  4:  244. 
1"  Moore,  Digest,  2  :  432. 


ENFORCEMENT  OF  INTERNATIONAL  LAW.  179 

"  I  may  add,  however,  that  if  any  persons  in  the  State  of  Pennsylvania 
take  measures  to  perpetrate  a  crime  in  a  foreign  land,  such  an  attempt, 
coupled  with  preparations  to  effectuate  it,  though  not  cognizable  in  the  federal 
courts,  is  cognizable  in  the  courts  of  the  state  of  Pennsylvania." 

Other  powers  of  enforcement,  still  exclusively  in  state  hands,  no- 
tably that  of  protecting  resident  aliens,  will  be  considered  later.^^ 

111.  Enforcement  under  the  National  Constitution. 

The  National  Constitution  confers  certain  independent  powers 
upon  the  executive  and  judicial  branches  for  the  enforcement  of 
international  law  and  treaties,  but  these  powers  are  insufficient. 
The  Constitution  has,  however,  given  Congress  authority  to  provide 
adequate  means  of  enforcement,  especially  in  the  power  "  to  define 
and  punish  piracies  and  felonies  committed  on  the  high  seas  and 
offenses  against  the  law  of  nations  "  and  in  the  power  "  to  make  all 
laws  which  shall  be  necessary  and  proper  for  carrying  into  execu- 
tion the  foregoing  powers  and  all  other  powers  vested  by  the  Con- 
stitution in  the  Government  of  the  United  States  or  in  any  depart- 
ment or  officer  thereof,"  thus  including  the  treaty  power.^^ 

A.  Enforcement  by  Legislative  Action. 

112.  Congressional  Resolutions  before  the  Constitution. 

Even  before  the  adoption  of  the  Constitution  Congress  realized 
the  necessity  for  legislation  to  prevent  violations  of  international 
law.  It  resolved  on  May  22,  1779,  that  the  United  States  would 
cause  the  "  law  of  nations  to  be  most  strictly  observed,"  and  on 
November  23,  1781,  recommended  that  state  legislatures  provide  for 
the  punishment  of  offenses  relating  to  violation  of  safe  conducts, 
breaches  of  neutrality,  assaults  upon  public  ministers,  infractions 
of  treaties,  and  "  the  preceding  being  only  those  offenses  against  the 
law  of  nations  which  are  most  obvious,  and  public  faith  and  safety 
requiring  that  punishment  should  be  coextensive  with  all  crimes, 
Resolved,  that  it  be  further  recommended  to  the  several  states  to 


11  Supra,  sec.  120. 

12  U.  S.  Constitution,  art.  i,  sec.  8,  cl.  10,  18. 


180      THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

erect  tribunals  in  each  state,  or  vest  ones  already  existing  with 
power  to  decide  on  offenses  against  the  law  of  nations  not  contained 
in  the  foregoing  enumeration."  ^^ 

113.  Offenses  against  Persons  Protected  by  International  Law. 
By  an  act  of  September  24,  1789,  the  first  Congress  under  the 

Constitution  gave  district  courts  jurisdiction  of  suits  brought  by 
aliens  for  torts  "  in  violation  of  the  law  of  nations  or  of  a  treaty 
of  the  United  States,"  and  the  Supreme  Court  was  given  exclusive 
jurisdiction  of  suits  against  public  ministers  "  as  a  court  of  law  can 
have  consistently  with  the  law  of  nations."  These  provisions  re- 
main unchanged  in  the  present  judicial  code  of  1911.^*  An  act  of 
April  30,  1790,  still  in  effect,  prescribes  criminal  penalties  for 
assaulting  or  serving  out  process  against  public  ministers  or  their 
"  domestics  or  domestic  servants  ...  in  violation  of  the  law  of 
nations."  ^° 

An  act  of  August  29,  1842,  passed  after  the  McLeod  case  had 
shown  the  inability  of  the  national  government  to  release  persons 
entitled  to  immunity  imder  international  law  from  state  jurisdic- 
tion, gives  federal  courts  jurisdiction  to  release  on  habeas  corpus, 
persons  claiming  any  right  under  treaty  or  a  right  "  the  validity 
and  effect  of  which  depends  upon  the  law  of  nations."  ^^ 

114.  Offenses  Committed  on  the  High  Seas. 

The  crimes  act  of  April  30,  1790,  provided  for  the  punishment 
of  various  crimes  committed  on  the  high  seas  but  the  courts  inter- 
preted this  act  in  accord  with  international  law,  as  confined  to 
crimes  committed  by  American  citizens  or  In  American  vessels  in 
all  cases  except  piracy.^'^  The  act  was  amended  in  1819  so  as  to 
punish  all  persons  guilty  of  "  piracy  as  defined  by  the  law  of  na- 


13  Journ.  Cong.,  5:  161,  232;  7:  181,  Ford  ed.,  14:  635,  914;  21:  1137. 

1*1  Stat.  76,  sees.  9,  13;  Rev.  Stat.,  sec.  563,  els.  16,  687;  Jud.  Code  of 
191 1,  36  Staf.   1087,  see.  24,  els.  17,  233. 

15  I  Stat.  117,  sees.  25,  28;  Rev.  Stat.,  sees.  4062,  4064. 

18  5  Stat.  539 ;  Rev.  Stat.  753. 

i^U.  S.  V.  Palmer,  3  Wheat.  610;  U.  S.  v.  Klintock,  5  Wheat.  144,  152; 
Moore,  Digest,  2:  956. 


ENFORCEMENT  OF  INTERNATIONAL  LAW.  ISI 

tions."  ^^  These  laws  are  embodied  in  the  present  criminal  code  of 
1910.^" 

In  the  Scotia  and  other  cases  the  court  has  recognized  the  inter- 
national navigation  regulations  as  obligatory.'*' 

"Undoubtedly,"  said  Justice  Strong,  "no  single  nation  can  change  the 
law  of  the  Sea.  That  law  is  of  universal  obligation,  and  no  statute  of  one  or 
two  nations  can  create  obligations  for  the  world.  Like  all  the  laws  of  na- 
tions, it  rests  upon  the  common  consent  of  civilized  communities.  It  is  of 
force,  not  because  it  was  prescribed  by  a  superior  power,  but  because  it  has 
been  generally  accepted  as  a  rule  of  conduct." 

These  rules  were  adopted  by  Congress  in  an  act  of  1864.  With 
modifications  agreed  upon  in  a  conference  of  1889,  Congress  again 
adopted  them  by  an  act  of  August  19,  1890,  subject  to  the  action 
of  other  powers.  After  protracted  negotiations  the  rules  were 
finally  put  into  operation  July  i,  1897.  The  act  of  Congress  has 
provided  penalties  against  masters,  pilots,  and  vessels  in  case  of 
violation.'^ 

115.  Offenses  against  Neutrality. 

Th€  first  neutrality  act  was  passed  June  5,  1794,  after  it  had 
been  discovered  that  the  President  and  courts  lacked  power  effec- 
tively to  enforce  neutrality  with  their  independent  powers.  The 
act  as  amended  in  1797  and  1818  is  still  in  effect,  and  is  included  in 
the  criminal  code  of  1910.-^  Further  amendments  were  made  in 
1915  and   1917.2^ 

These  laws  provide  for  punishment  of  American  citizens  accept- 
ing commissions  while  the  United  States  is  neutral,  and  for  punish- 


18  U.  S.  V.  Smith,  5  Wheat.  153. 

19  Criminal  Code  of  1910,  sec.  290  et  seq. 

20  The  Scotia,  14  Wall.  170,  1871.  But  see  The  Lottawanna,  21  Wall. 
558,  Willoughby,  op.  cit.,  pp.  1015-1017. 

=^iAct  Sept.  4,  1890,  sees,  i,  2,  26  Stat  423;  Comp.  Stat.,  sees.  7979,  7980; 
June  7,  1897,  sees.  3,  4,  30  Stat.  103;  Comp.  Stat.  7907,  7908;  Moore,  Digest, 
2:  474. 

22  Criminal  Code  of  1910,  sees.  9-18.  See  also  Fenwick,  The  Neutrality 
Laws  of  the  United  States,  Washington,  1913,  and  Wright,  The  Enforcement 
of  International  Law  Through  Municipal  Law  in  the  United  States,  1915, 
pp.  114  et  seq. 

23  Act  March  4,  1915,  38  Stat.  1226;  May  7,  1917,  June  IS,  1917,  sees,  i-io, 
40  Stat.  221-223 ;  Comp.  Stat.,  sees.  10,  182. 


182     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

ment  of  any  one  recruiting  for  foreign  belligerents  in  American 
territory.  Persons  with  unneutral  intent  fitting  out  and  arming  or 
augmenting  the  forces  of  vessels,  or  setting  on  foot  military  or 
naval  expeditions  or  enterprises  in  American  territory  are  also 
liable,  as  are  persons  taking  out  of  the  United  States  a  vessel  built 
or  converted  as  a  war  vessel  with  knowledge  that  it  is  likely  to 
reach  the  hands  of  a  belligerent  or  aiding  interned  belligerent  per- 
sons to  escape. 

The  acts  give  the  President  power  to  expel  vessels  from  waters 
in  which  "  by  the  law  of  nations  "  they  ought  not  to  remain,  and 
to  detain  or  prevent  the  departure  of  vessels  "  which  by  the  law 
of  nations  or  the  treaties  of  the  United  States  "  are  not  entitled 
to  depart.  The  President  is  authorized  to  use  the  land  and  naval 
forces  "  as  he  may  deem  necessary  to  carry  out  the  purposes  "  of 
the  neutrality  laws.  The  acts  provide  for  withholding  the  clearance 
from  vessels  suspected  of  using  the  territory  "  in  violation  of  the 
laws,  treaties  or  obligations  of  the  United  States  under  the  law  of 
nations,"  for  bonding  armed  merchant  vessels  using  American  ports 
and  for  detention  by  customs  officials  of  suspected  vessels  not 
bonded.  They  give  district  courts  jurisdiction  to  restore  prizes 
illegally  taken  in  American  waters,  to  decide  proceedings  for  the 
forfeiture  of  vessels  violating  neutrality  and  for  enforcing  the 
criminal  provisions  of  the  act.  It  has  been  held  that  the  law 
applies  not  only  to  acts  in  behalf  of  belligerents  but  also  to  acts 
in  behalf  of  insurgents,  though  not  to  acts  in  behalf  of  recognized 
governments  operating  against  insurgents.^* 

ii6.  Offenses  against  Foreign  Governments. 

An  act  of  May   i6,   1884,  provided  punishment  for  forging  or 

counterfeiting  foreign  securities  and  the  act  was  held  to  be  within 

the  power  of  Congress  to  punish  offenses  against  the  law  of  nations, 

though  it  contained  no  specific  statement  that  the  ofifense  was  of 

that   character.^''     The    counterfeiting   of    foreign   coins   has   been 

made  punishable  by  various  acts  since   1877.^^ 

2*  The  Three  Friends,  166  U.  S.  i  (1897)  ;  U.  S.  v.  Trumbull,  48  Fed.  99 
(1891)  ;  Ex  parte  Toscano,  208  Fed.  938  (1913)- 

25  Criminal  Code  of  1910,  sees.  156-162;  U.  S.  v.  Arjona,  120  U.  S.  479- 
-'^  Ibid.,  sees.  162-173. 


ENFORCEMENT  OF  INTERNATIONAL  LAW.  183 

By  the  act  of  August  ii,  1848,  superseded  by  the  act  of  June  22, 
i860,  the  American  Minister,  in  countries  permitting  extraterritorial 
jurisdiction  by  treaty,  is  authorized  to  try  resident  American  citizens 
for  felonies  or  insurrection  against  the  government  of  such  states.^^ 
An  act  of  April  22,  1898,  amended  on  March  14,  1912,  provided  for 
the  embargo  of  arms  and  munitions  to  American  countries  pro- 
claimed by  the  President  to  be  in  a  "condition  of  domestic  vio- 
lence "  and  for  criminal  punishment  of  persons  violating  such  em- 
bargo.^® As  has  been  noticed  the  neutrality  laws  have  been  utilized 
to  prevent  the  giving  of  aid  to  insurgents  against  friendly  govern- 
ments.^® 

By  the  espionage  act  of  June  15,  1917,  conspiracy  to  destroy 
specific  property  in  foreign  territory  is  made  punishable,  as  is  having 
in  possession  property  for  use  in  aid  of  foreign  governments  "  as 
a  means  of  violating  any  of  the  .  .  .  obligations  of  the  United 
States  under  any  treaty  or  the  law  of  nations."  ^° 

117.  Offenses  Relating  to  International  Boundaries. 

There  appears  to  be  a  special  responsibility  to  prevent  acts  near 
a  frontier  likely  to  injure  the  adjacent  state,  such  as  interference 
with  running  water,  bounding  or  flowing  into  it,  or  the  toleration  of 
marauders,  conspirators,  or  insurgents  with  designs  on  adjacent 
territory.^^  By  an  act  of  1902  Congress  recommended  an  interna- 
tional commission  to  consider  the  use  of  Canadian  boundary  waters 
and  by  act  of  1906,  provided  that  such  waters  should  only  be  di- 
verted on  permits  issued  by  the  Secretary  of  War  and  that  persons 
violating  this  provision  should  be  subject  to  criminal  punishment. ^^ 
By  a  treaty  with  Great  Britain  of  1909  (Art.  VII),  similar  require- 
ments are  made  and  their  supervision  put  in  charge  of  an  interna- 
tional joint  commission.     A  convention  of   1889  with  Mexico  sev- 


2^  Rev.   Stat.,   sees.  4090,  41Q2;    Comp.   Stat.  7040,  7647;   Moore,  Digest, 
613-616. 
2830  Stat.  739;  27  Stat.  630;  Comp.  Stat,  l^iy-l^^. 
'^  Supra,  note  24. 
3040  Stat.  226,  sec.  s;  230,  sec.  22. 

31  Moore,  Digest,  2:  481. 

32  32  Stat,  373 ;  34  Stat.  627 ;  Comp.  Stat,  sees.  9984,  9989,  a-c. 


184     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

eral  times  renewed,  provided  a  commission  for  adjusting  Rio 
Grande  boundary  difficulties  and  a  convention  of  1906  provided 
for  the  distribution  of  Rio  Grande  water  for  irrigation  purposes.^^ 
Several  protocols  have  been  made  for  the  suppression  of 
marauders  on  the  Mexican  border  and  legislation  providing  for  the 
embargo  of  arms  to  American  countries  in  a  condition  of  domestic 
violence  was  passed  with  particular  reference  to  Mexico.^*  Doubt- 
less under  treaties  and  general  laws,  as  well  as  the  special  acts 
referred  to,  the  President  has  adequate  power  to  meet  responsibil- 
ities connected  with  international  boundaries. 

118.  Offenses  against  Treaties. 

A  number  of  acts  have  been  passed  for  preventing  the  violation 
of  treaties  by  private  individuals.  An  act  of  1847  provided  for  the 
punishment  of  aliens  committing  piracy  as  defined  by  treaty. ^^ 
Various  acts  passed  since  1808  for  the  punishment  of  slave  traders 
seem  to  give  adequate  authority  to  prevent  violation  of  the  inter- 
national Slave  Trade  Convention.  Acts  passed  in  1828,  1842  and 
1862  and  on  other  occasions  were  designed  to  enforce  particular 
conventions  for  suppressing  the  slave  trade  and  trade  in  liquor  and 
arms  with  natives.''" 

An  act  of  August  12,  1848,  amended  on  June  22,  i860,  and  June 
6,  1900,  provides  for  the  extradition  of  persons  as  required  by 
treaties."  An  act  of  March  2,  1829,  amended  in  1855,  provided  for 
the  return  of  deserting  seamen  as  required  by  treaty  on  application 
of  foreign  consuls.^^  This  act,  however,  terminated  upon  denuncia- 
tion of  the  treaties  as  required  by  the  La  Follette  Seaman's  Act  of 
March  4,  I9i5."''"  An  act  of  April  14,  1792,  superseded  by  acts  of 
Augusts,  1846,  and  June  11, 1864,  gives  United  States  district  Courts 
and  United   States   commissioners   power  to  enforce  the  awards, 


33  Moore,  Digest,  2 :  434-445. 

'*  Supra,  note  28,  and  Malloy,  Treaties,  etc.,  p.  1144  et  seq. 

'=9  Stat.  175;  Rev.  Stat.  5374;  Criminal  Code  of  1910,  sec.  305. 

»«4  Stat.  276;  5  Stat.  623;  Crandall,  op.  cit.,  p.  239. 

»^  9  Stat.  302;  12  Stat.  83;  Rev.  Stat.,  sees.  5270-5279;  31  Stat.  656. 

"  4  Stat.  359 ;  10  Stat.  614 ;  Rev.  Stat.,  sec.  280 ;  Crandall,  op.  cit.,  p.  233. 

"38  Stat.  1 184,  sec.  17;  Comp.  Stat,  gee,  8382b;  10129. 


ENFORCEMENT  OF  INTERNATIONAL  LAW.  185 

arbitrations  or  decrees  of  foreign  consuls  exercising  jurisdiction  in 
the  United  States  as  authorized  by  treaties,*" 

Among  other  acts  of  Congress  imposing  criminal  penalties  for 
infraction  of  treaties  by  individuals  may  be  mentioned  an  act  of 
February  22,  1888,  for  enforcing  the  International  Cable  Conven- 
tion of  1885;  an  act  of  January  5,  1905,  amended  in  1910  in  pur- 
suance of  the  Red  Cross  Conventions  of  1864  (Arts.  27-28)  and 
1906,  and  the  X  Hague  Convention  of  1907  (Art.  29)  applying 
them  to  naval  warfare,  providing  punishment  for  use  of  the  Red 
Cross  symbol  in  advertising  or  in  other  unauthorized  manner;  an 
act  of  August  I,  1912,  providing  punishment  for  masters  of  vessels 
failing  to  give  reasonable  assistance  in  case  of  maritime  accident  as 
required  by  the  general  convention  on  salvage  of  1910;  an  act  of 
August  24,  1912,  providing  punishment  for  persons  taking  seal  in 
the  North  Pacific  in  violation  of  the  Behring  Sea  sealing  convention 
of  191 1  ;  an  act  of  August  13,  1912,  for  enforcing  the  international 
radio  convention  of  that  year  by  providing  punishment  for  per- 
sons using  radio  without  license  and  for  operators  wilfully  inter- 
fering with  radio  communication  or  otherwise  violating  the  con- 
vention, and  an  act  of  July  3,  1918,  providing  for  enforcement  of 
the  migratory  bird  treaty  with  Great  Britain  of  that  year." 

In  view  of  the  abundance  of  congressional  legislation  giving 
effect  to  treaties  and  the  apparently  plain  terms  of  the  "  necessary 
and  proper  "  clause  of  the  Constitution  there  would  seem  no  room 
for  questioning  the  power  of  Congress  to  pass  such  legislation.  The 
power  has,  however,  been  questioned  when  treaties  have  called  for 
legislation  on  subjects  not  otherwise  within  congressional  power. 
The  Supreme  Court  has  answered  with  no  uncertain  voice.  Said 
Justice  Harlan  in   1900:  ^^ 

"  The  power  of  Congress  to  make  all  laws  necessary  and  proper  for 
carrying  into  execution  as  well  the  powers  enumerated  in  Section  8  of  Article 


*°  13  Stat.  12;  Rev.  Stat.,  sec.  728;  Jud.  Code  of  191 1,  36  Stat.  1163,  sec. 
■2T,  Comp.  Stat.,  sec.  1248;  Crandall,  op.  cit.,  p.  234. 

*i  40  Stat.,  c.  128;  Comp.  Stat,  sec.  8837  a-c.  Congress  has  not  suffi- 
ciently legislated  for  the  enforcement  of  all  existing  treaties,  for  example  see 
infra,  note  67. 

*^  Neeley  v.  Henkel,  180  U.  S.  109. 


186     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

I  of  the  Constitution,  as  all  others  vested  in  the  Government  of  the  United 
States,  or  in  any  department  or  officers  thereof,  includes  the  power  to  enact 
such  legislation  as  is  appropriate  to  give  efficacy  to  any  stipulations  which  it 
is  competent  for  the  President,  by  and  with  the  advice  and  consent  of  the 
Senate,  to  insert  in  a  treaty  with  a  foreign  power." 

In  the  trademark  cases,  the  Supreme  Court  held  Congress  incom- 
petent to  legislate  on  that  subject,  but,  said  Justice  Miller :  *^ 

"In  what  we  have  here  said  we  wish  to  be  understood  as  leaving  un- 
touched the  whole  question  of  the  treaty-making  power  over  trademarks  and 
of  the  duty  of  Congress  to  pass  any  laws  necessary  to  carry  treaties  into 
eflFect." 

Finally  in  Missouri  v.  Holland  the  Supreme  Court  sustained  the 
migratory  bird  treaty  with  Great  Britain  and  the  act  of  Congress 
to  enforce  it,  although  a  similar  act  not  based  on  treaty  had  shortly 
before  been  held  unconstitutional.** 

"If  the  treaty  is  valid,"  said  Justice  Holmes,  "there  can  be  no  dispute 
about  the  validity  of  the  statute  under  Article  i,  sec.  8,  as  a  necessary  and 
proper  means  to  execute  the  powers  of  the  government." 

It  is  clear  that  by  the  multiplication  of  treaties  the  power  of 
Congress  may  be  extended  into  fields  of  criminal  jurisdiction, 
heretofore   entirely   within   state   control. 

119.  General  Empowering  Statutes. 

Most  of  the  acts  of  Congress  referred  to  confer  power  upon 
the  President  or  other  executive  authority  to  take  preventive  meas- 
ures and  to  use  the  military  forces,  but  in  addition  general  acts 
as  early  as  1792  have  conferred  on  the  President  power  to  call 
forth  the  militia  or  use  the  army  and  navy  "  to  execute  the  laws  of 
the   union,    suppress   insurrection   and    repel    invasion."  *^ 

120.  Sufficiency  of  Existing  Legislation  to  Protect  Resident  Aliens. 
It  appears  that  Congress  has  enacted  legislation  to  prevent:  (i) 

offenses  against  diplomatic  officers  and  other  persons  especially  pro- 

*3  Trade  Mark  Cases,  100  U.  S.  82  (1879). 

**  Missouri  v.  Holland,  252  U.  S.  416  (1920). 

*5Acts  May  2,  1792,  Feb.  28,  1795,  March  3,  1807,  Jan.  21,  1903  (Dick 
Act),  and  subsequent  amendments,  i  Stat.  264,  424;  2  Stat.  443;  32  Stat.  776, 
sec.  4;  35  Stat.  400;  38  Stat.  284.     See  also  supra,  sec.  125. 


ENFORCEMENT  OF  INTERNATIONAL  LAW.  187 

tected  by  international  law;  (2)  offenses  committed  on  the  high 
seas,  especially  piracy  and  violations  of  the  international  rules  of 
navigation;  (3)  offenses  against  neutrality;  (4)  offenses  against  the 
sovereignty  or  territory  of  foreign  nations,  especially  the  counter- 
feiting of  their  securities,  conspiracy  to  destroy  property  within 
their  territory,  and  insurrection  against  them;  (5)  offenses  relating 
to  international  boundaries  and  (6)  offenses  against  treaties,  espe- 
cially those  suppressing  international  nuisances  such  as  the  slave 
trade,  aiding  the  administration  of  justice  as  by  extradition,  pro- 
tecting international  resources  such  as  fur  seal  and  migratory  birds, 
protecting  international  services  such  as  the  Red  Cross,  Submarine 
Cables,  Radio  Communication,  etc. 

This  legislation  does  not  appear  fully  adequate  to  meet  all  inter- 
national responsibilities  arising  from  the  acts  of  individuals,  the 
most  notable  lacuna  being  in  the  protection  of  resident  aliens. 
Presidents  Harrison,  McKinley,  Roosevelt  and  Taft  each  urged 
legislation  authorizing  criminal  prosecution  in  the  federal  courts  of 
persons  violating  the  rights  of  aliens  under  treaties  or  international 
law  and  adequate  executive  authority  to  take  preventive  measures, 
but  in  view  of  the  inroad  such  legislation  would  make  upon  the 
police  jurisdiction  of  the  states  it  has  not  been  passed.*^  On  sev- 
eral occasions  the  United  States  has  been  obliged  to  pay  indemnities 
because  of  its  inability  under  existing  laws  to  exercise  "  due  dili- 
gence "  in  this  respect.*'  The  power  of  Congress  to  pass  such  legis- 
lation, at  least  for  the  protection  of  the  rights  of  aliens  guaranteed 
by  treaty,  cannot  be  questioned,*^  and  it  would  seem  that  an  offense 
against  the  rights  of  aliens  under  general  international  law  would 
be  an  "  offense  against  the  law  of  nations  "  and  so  within  the  power 
of  Congress. 

121.  Sufficiency    of   Existing   Legislation    for  Punishing    Offenses 
Against  Foreign  Governments. 
Offenses  against  the  sovereignty  and  territory  of  foreign  states 
are  not  fully  covered  by  national  law.     Libels  upon  foreign  states 

*8  Moore,  Digest,  6 :  820  et  seq. 
47  Ibid. 

*8  Baldwin  v.  Franks,  120  U.  S.  678;  Corwin,  National  Supremacy,  p.  286 
et  seq.;  Taft,  The  United  States  and  Peace,  40  et  seq.,  supra,  sec.  49. 


188     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

or  sovereigns,  conspiracy  to  promote  insurrection  or  revolution  in 
foreign  states,  or  to  assassinate  the  ruler  of  a  foreign  state  do  not 
appear  to  be  punishable  by  national  laws  though  they  have  been 
made  the  subject  of  international  discussion  and  are  indictable 
offenses  in  many  countries.  Some  of  these  acts  are  punishable  in 
state  courts.*^ 

It  is  not  clear,  however,  just  how  far  a  nation  is  bound  to  sup- 
press such  acts  in  its  territory.  Field  lays  down  in  his  Interna- 
tional Code  that :  ^° 

"  One  who  uses  his  asylum  for  prompting  hostilities  against  a  foreign 
country  may  be  proceeded  against  under  the  law  of  the  nation  of  his  asylum, 
or  may  be  surrendered  to  the  nation  aggrieved." 

It  does  not  appear,  however,  that  American  law  recognizes  an  inter- 
national responsibility  either  itself  to  punish  such  offenses  or  to 
aid  the  foreign  government  in  punishing  them.^^  As  has  been  no- 
ticed very  few  offenses  against  foreign  states  are  punishable  in  the 
federal  courts.  The  counterfeiting  of  foreign  securities  is  the 
most  important  exception.  The  statutes  relating  to  insurrection 
and  conspiracy  to  destroy  property  abroad  have  been  enacted  for 
national  defense  rather  than  for  the  enforcement  of  international 
law.  The  same  is  true  of  the  acts  of  Congress  providing  for  the 
exclusion  and  deportation  of  alien  anarchists  and  for  the  punish- 
ment of  persons  acting  while  the  United  States  is  at  war  so  as  "  to 
bring  the  form  of  government  of  the  United  States  into  contempt, 
scorn,  contumely  and  disrepute."  Such  alien,  sedition,  and  espion- 
age acts  are  for  the  protection  of  the  United  States  rather  than  for 
the  suppression  of  anarchy  or  sedition  as  an  international  crime."* 
President  Roosevelt  in  igoi  urged  that  "anarchy  be  declared  an 
offense  against  the  law  of  nations  throudi  treaties  among  all  civi- 


*8  Moore,  Digest,  2 :  430. 

50  Field,  Int.  Code,  sec.  207,  p.  86. 

^'^  Moore,  Digest,  2 :  430. 

52  Alien  Act,  June  25,  1798  (for  two  years),  i  Stat.  570;  Exclusion  of 
seditious  aliens,  act  Feb.  5,  1917,  and  expulsion  of  such  aliens,  act  Oct.  16, 
1918.  Sedition  act,  July  14,  1798  (for  two  years),  i  Stat.  596;  June  15,  iQi?. 
Title  I,  sec.  3,  amended  May  16,  1918,  sec.  i  (for  war  period),  40  Stat.  353; 
Comp.  Stat.,  sec.  I02ni.     See  Abrams  v.  U.  S.,  250  U.  S.  616  (1919). 


ENFORCEMENT  OF  INTERNATIONAL  LAW.  189 

lized  powers."  This  result  has  not  been  achieved,  though  a  num- 
ber of  American  extradition  treaties,  concluded  thereafter,  ex- 
pressly exclude  attempts  against  the  life  of  the  Head  of  a  State 
from  the  category  of  political  ofifenses.^^ 

122.  Sufficiency  of  Existing  Legislation  in  Aid  of  Foreign  Criminal 
Justice. 
Nor  has  the  United  States  held  that  there  is  any  international 
duty  to  aid  foreign  criminal  justice.  Although  Congress  has  pro- 
vided, in  pursuance  of  a  generally  recognized  duty  of  comity,  for 
the  execution  by  Federal  courts  of  letters  rogatory  from  foreign 
states  requesting  the  taking  of  testimony  in  "  suits  for  the  recovery 
of  money  or  property,"  it  has  made  no  provision  for  the  taking  of 
testimony  in  criminal  cases. ^*  The  states  also  have  generally  re- 
fused to  compel  testimony  for  foreign  criminal  trials.^' 

"The  taking  of  testimony,"  said  the  Attorney-General  of  Pennsylvania, 
"by  deposition  for  criminal  cases  is  unknown  to  our  system  of  jurisprudence, 
and  section  9  of  Article  I  of  the  Declaration  of  Rights  in  our  Constitution 
provides  that  in  all  criminal  prosecutions  the  accused  hath  the  right  to  meet 
the  witnesses  face  to  face.  I  am,  therefore,  of  the  opinion  that  the  courts  of 
this  Commonwealth  are  not  competent  to  receive  these  letters  rogatory  and  to 
enforce  the  testimony  of  this  witness  by  deposition  or  answers  to  interroga- 
tories, to  be  used  in  the  criminal  cause." 

The  same  distinction  has  been  recognized  in  reference  to  the 
execution  of  foreign  judgments.  In  civil  cases,  the  rule  of  reci- 
procity has  been  established  by  international  comity,  thus  the  fed- 
eral courts  carry  out  the  judgments  of  foreign  courts  which  will 
reciprocate.^''  Rut  not  so  with  criminal  judgments.  The  United 
States  has  never  itself  enforced  a  criminal  judgment  of  a  foreign 
state  nor  has  it  as  a  general  practice  turned  over  fugitives,  accused 
or  convicted  of  crimes  in  foreign  courts,  except  on  the  express 
stipulation  of  treaty. ^^     The  only  exception  to  the  rule  appears  to 


53  Moore,  Digest,  2:  434.     See  Treaties,  Brazil,  1897,  ratified  1903;  Den- 
mark, 1902;  Guatemala,  1903;  Spain,  1904;  Protocol,  1907;  Cuba,  1904. 
5*  Moore.  Digest,  2:  no. 
'^^  Ibid.,  2:  112. 

56  Hilton  V.  Guyot,  159  U.  S.  113  (1895)  ;  Moore,  Digest,  2:  217-224. 
5^  Moore,  Digest,  2:  no;  4:  245  et  seq. 


190     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

be  the  case  of  Arguelles,  who  was  extradited  to  Spain  by  President 
Lincoln  in  1864,  although  no  treaty  required  such  action.^*  The 
position  of  the  United  States  has  been  that  "  both  by  the  law  and 
practice  of  nations,  without  a  treaty  stipulation,  one  government  is 
not  under  any  obligation  to  surrender  a  fugitive  from  justice  to 
another  government  for  trial,"  ^"  and  that  "  the  President  has  no 
power  *  to  make  the  delivery  '  unless  under  treaty  or  act  of  Con- 
gress." *'°  Congress  has  passed  acts  in  pursuance  of  treaties  of  ex- 
tradition, but  the  opinion  has  been  expressed  that  Congress  might 
authorize  extradition  without  treaty. ^^  Since  such  a  law,  with  the 
above  stated  theory,  could  not  be  justified  as  the  "  punishment  of 
an  offense  against  the  law  of  nations "  it  is  difficult  to  see  where 
the  power  of  Congress  would  come  from. 

It  has  been  held  that  the  federal  Constitution  prohibits  extradi- 
tion under  state  authority  unless  such  procedure  is  expressly  stipu- 
lated in  treaty  or  act  of  Congress.  This  is  due  to  the  express  pro- 
hibition of  the  states  from  treaty-making  or  agreement-making 
without  the  consent  of  Congress.^^ 

B.     Enforcement  by  Action  of  the  Treaty  Power. 

123.  Treaties  as  a  Basis  for  Executive  and  Judicial  Action. 

Treaties  are  the  supreme  law  of  the  land  and  it  might  seem 
that  they  would  in  themselves  furnish  sufficient  authority  for  execu- 
tive or  judicial  enforcement  of  the  obligations  they  impose.  This  is 
doubtless  true  of  executive  action.  Courts  have  held  that  troops 
may  be  interned  and  persons  extradited  by  executive  authority  on 
the  basis  of  treaty  alone.®^     It  has  been  held,  however,  that  courts 


58  Ibid.,  4 :  249. 

"9  Mr.  Buchanan,  Sec.  of  State,  to  Mr.  Wise,  Sept.  27,  1845,  Moore, 
Digest,  4:  246. 

60  Wirt,  Att.  Gen.,  i  Op.  509,  521 ;  Terlinden  v.  Ames,  184  U.  S.  270,  289 
(1902)  ;  Moore,  Digest,  4:  248,  253. 

8^  Willoughby,  op.  cit.,  p.  479. 

^2  Supra,  sec.  90. 

«3£.r  parte  Toscano,  208  Fed.  938;  U.  S.  v.  Robbins.  Fed.  Cas.  No.  16175; 
In  re  Metzger,  5  How.  176,  188;  Crandall,  op.  cit.,  230  et  seq. 


ENFORCEMENT  OF  INTERNATIONAL  LAW.  191 

cannot  exercise  criminal  jurisdiction  or  compel  the  extradition  of 
fugitives  unless  Congress  has  passed  enabling  legislation.®* 

124.  Treaties  as  a  Basis  for  Congressional  Action. 

Treaty  provisions  requiring  positive  enforcement  within  Amer- 
ican jurisdiction  have  been  of  three  kinds.  Sometimes  they  state 
definite  acts  which  the  government  must  prevent.  Thus  the  V 
Hague  Convention  of  1907  says,  "a  neutral  power  must  not  allow 
any  of  the  acts  referred  to  in  articles  2  to  4  to  occur  on  its  terri- 
tory." ®^  Sometimes  treaties  state  the  degree  of  diligence  which  the 
government  must  exercise  to  achieve  a  given  result  leaving  it  dis- 
cretion in  determining  the  method  to  be  used.  Thus  article  III  of 
the  Chinese  treaty  of  1880  afifirmed  by  article  IV  of  the  treaty  of 
1894  requires  the  United  States  to  "  exert  all  its  powers  to  devise 
measures  for  the  protection  (of  resident  Chinese)  and  to  secure  to 
them  the  same  rights,  privileges,  immunities  and  exemptions  as  may 
be  enjoyed  by  the  citizens  or  subjects  of  the  most  favored  nation 
and  to  which  they  are  entitled  by  treaty."  ^^  Finally,  treaties  some- 
times merely  require  that  the  government  endeavor  to  have  legis- 
lation passed.    Thus  by  article  27  of  the  Geneva  convention  of  1906  :®'^ 

"  The  signatory  powers  whose  legislation  may  not  now  be  adequate  engage 
to  take  or  recommend  to  their  legislatures  such  measures  as  may  be  necessary 
to  prevent  the  use,  by  private  persons  or  by  societies  other  than  those  upon 
which  this  convention  confers  the  right  thereto,  of  the  emblem  or  name  of 
the  Red  Cross  or  Geneva  Cross,  particularly  for  commercial  purposes  by 
means  of  trademarks  or  commercial  labels.  The  prohibition  of  the  use  of 
the  emblem  or  name  in  question  shall  take  effect  from  the  time  set  in  each 
act  of  legislation,  and  at  the  latest  five  years  after  this  convention  goes  into 
eflFect.  After  such  going  into  eflfect,  it  shall  be  unlawful  to  use  a  trademark 
or  commercial  label  contrary  to  such  prohibition." 


64  The  Estrella,  4  Wheat.  298;  The  British  Prisoners,  i  Wood,  and  Mm. 

66  (1845). 

65  See  also  Submarine  Cable  Convention,  1884,  art.  II. 

66  See  also  XIII  Hague  Convention,  1907,  sees.  8,  25. 

6^  See  also  African  Slave  Trade  Convention,  1890,  art.  xii,  and  Treaty  of 
Peace  with  Great  Britain,  1783,  art.  V.  President  Cleveland  recommended 
legislation  prohibiting  the  sale  of  arms  in  central  Africa  as  required  by  the 
former,  in  his  message  of  December  4,  1893,  but  Congress  has  not  acted. 
(Moore,  Digest,  2:  471.) 


192     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

This  has  been  the  usual  form  in  general  international  conventions. 
Although  the  obligation  of  Congress  to  act  is  doubtless  greater 
under  treaties  of  the  first  form  than  the  last,  it  would  appear  that 
the  difference  is  wholly  one  of  degree.  Under  any  of  the  three 
forms,  the  United  States  will  be  responsible  if  it  fails  to  exert  the 
diligence  required  by  the  treaty,  and  in  none  of  them  is  criminal 
prosecution  possible  in  the  United  States  without  enabling  legislation. 

C.    Enforcement  by  the  President. 

125.  Independent  Powers  of  the  President. 

Although  Congress  has  passed  general  laws  giving  the  President 
power  to  use  the  military  and  naval  forces  and  the  militia  to  enforce 
the  laws,  suppress  insurrection  and  repel  invasion,  and  many  special 
laws  giving  him  power  to  use  the  forces  for  particular  purposes, 
the  President  has  always  taken  the  view  that  these  laws  except  as 
applied  to  the  militia  were  unnecessary,  and  that  as  commander-in- 
chief  and  as  chief  executive,  he  has  independent  power  to  employ 
the  army  and  navy  and  direct  the  civil  administration  in  order  to 
execute  the  laws  and  treaties  of  the  United  States.  President  Fill- 
more in  response  to  a  resolution  of  inquiry  called  attention  to  the 
different  position  occupied  by  the  President  with  reference  to  the 
militia,  which  may  only  be  called  out  as  Congress  shall  provide,  and 
to  the  army  and  navy  of  which  the  President  is  permanent  com- 
mander-in-chief.    As  to  the  latter,  he  said :  ^® 

"  Probably  no  legislation  of  Congress  could  add  to  or  diminish  the  power 
thus  given,  but  by  increasing  or  diminishing,  or  abolishing  altogether  the 
army  and  navy." 

By  an  act  of  June  18,  1878,  Congress  made  it  unlawful  and  a  penal 
offense :  ®^ 

"  to  employ  any  part  of  the  Army  of  the  United  States  as  a  posse  comitatus 
or  otherwise,  for  the  purpose  of  executing  the  laws,  except  in  such  cases  and 
under  such  circumstances  as  such  employment  of  said  force  may  be  expressly 
authorized  by  the  Constitution  or  by  act  of  Congress." 

88  Richardson,  Messages,  5 :  105 ;  Finley-Sanderson,  The  Executive,  p. 
214;  supra,  sec.  119. 

''^20  Stat.  152,  sec.  15;  Comp.  Stat.,  sec.  1902;  Finley-Sanderson,  op.  cit., 
p  270. 


ENFORCEMENT  OF  INTERNATIONAL  LAW.  193 

This,  however,  does  not  affect  President  Fillmore's  theory  since  he 
claimed  no  power  to  use  the  army  other  than  as  "  expressly  author- 
ized by  the  Constitution."  The  court  held  in  Martin  v.  Mott^°  that 
the  President  could  determine  when  the  exigency  existed  for  calling 
forth  the  militia  as  specified  by  Congress,  and  no  power  could  review 
his  action.  It  seems  equally  certain  that  he  can  determine  when  a 
proper  constitutional  occasion  for  using  the  army  has  occurred  and 
is  not  limited  by  congressional  expressions  in  this  regard.  Certainly 
the  opinions  of  the  Supreme  Court  in  the  Debs  and  Neagle  cases 
support  this  theory. ^^  However,  the  issue  is  largely  theoretic  be- 
cause the  delegations  of  authority  actually  made  by  Congress  seem 
sufficiently  broad  to  cover  all  probable  exigencies. 

126.  President's  Use  of  Military  Forces. 

In  practice  the  President  has  used  the  military  forces  in  Amer- 
ican territory  to  enforce  international  law  and  treaty  on  many  occa- 
sions. He  has  thus  used  them  to  enforce  the  protocols  with  Mexico 
requiring  suppression  of  marauding  Indians  and  others  near  the 
border;  to  preserve  order  in  case  of  mob  violence  as  in  the  Chi- 
cago strikes  of  1894  giving  rise  to  the  Debs  case,  and  to  suppress 
nuisances  on  the  high  seas  or  in  neighboring  territory.  The  sup- 
pression of  pirates  in  Amelia  Island  in  181 7,  of  Indians  in  Florida 
by  Jackson  in  1819,  and  the  pursuit  of  Villa  in  Mexico  by  General 
Pershing  in  1916  are  illustrations  of  action  of  the  latter  kind.'''' 
The  most  important  executive  use  of  military  forces  in  American 
territory  is  of  course  that  by  President  Lincoln  on  the  outbreak  of 
the  Civil  War.  The  militia  were  called  out  April  15,  1861,  under 
authority  of  general  laws  and  the  army  and  navy  employed  before 
Congress  had  given  express  authorization. '^^     We  may  conclude  that 


■^0  Martin  v.  Mott,  12  Wheat.  19. 

■^i/w  re  Neagle,  135  U.  S.  i ;  In  re  Debs,  158  U.  S.  564.  See  also  Infra, 
sec.  222. 

^2  Moore,  Digest,  2:  41S-425,  435-446;  402-408;  Am.  Year  Book,  1916, 
p.  79  et  seq.  For  President's  use  of  force  to  meet  responsibilities  outside 
of  the  territory  see  infra,  sec.  151,  and  for  his  power  to  use  force  in  general, 
infra,   sees.  221-224. 

''^  Blockade  was  proclaimed  April  19,   1861.    The  first  act  of  Congress 


194     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

the  President  is  endowed  with  sufficient  power  to  employ  the  armed 
forces,  whenever  he  believes  it  necessary  in  order  to  enforce  any 
constitutional  provision,  treaty  or  act  of  Congress,  or  to  suppress 
mob  violence  or  insurrection  likely  to  obstruct  national  services. 

127.  President's  Direction  of  Administrative  Action. 

Although  the  position  of  the  President  as  chief  executive  does 
not  carry  with  it  power  to  create  agencies  for  enforcing  international 
law  and  treaties  (though  such  a  suggestion  is  contained  in  the 
Neagle  case),  it  has  been  held  to  confer  a  power  of  directing  ad- 
ministrative action  of  the  agencies  actually  existing  through  instruc- 
tions, practically  enforceable  by  the  removal  power. '^* 

Thus  the  President  has  been  able  to  accord  special  police  pro- 
tection to  diplomatic  officers  and  other  foreigners  entitled  to  pro- 
tection when  necessary."^  He  has  ordered  the  extradition  of  fugi- 
tives when  required  by  treaty  and  the  courts  have  sustained  the 
action.  Thus  President  John  Adams  extradited  one  Jonathan 
Robbins  under  the  Jay  treaty  and  was  eloquently  sustained  in  this 
action  by  Marshall,  then  in  Congress.  "  The  treaty,"  he  said,  "  stip- 
ulating that  a  murderer  shall  be  delivered  up  to  justice,  is  as  ob- 
ligatory as  an  act  of  Congress  making  the  same  declaration."  The 
President's  power  was  sustained  in  the  case  of  the  British  Prisoners 
in  1845  and  in  the  ISfetzger  case  in  1847.'^  But  in  the  latter  case 
before  the  fugitive  was  delivered,  the  New  York  supreme  court 
intervened  and  released  the  prisoner  on  habeas  corpus,  on  the  theory 
that  the  treaty  w^as  not  executable  without  congressional  legisla- 
tion."^    This  resulted  in  the  act  of  1848  providing  for  extradition. '^^ 


recognizing  that  war  existed  was  on  July  13,  1861.  Willoughby,  op.  cit.,  pp. 
88,  1209. 

"*  Infra,  sees.  227,  230. 

■^'^  Moore,  Digest,  4:  622  et  seq. 

■^6U.  S.  V.  Robbins,  Fed.  Cas.  No.  16175;  The  British  Prisoners,  i  Wood, 
and  Minn.  66;  In  re  Metzger,  5  How.  176;  Taft,  Our  Chief  Magistrate,  p.  87; 
Crandall,  op.  cit.,  p.  231. 

"/u  re  Metzger,  i  Barb.  248  (N.  Y.,  1847). 

7"  9  Stat.  302 ;  Rev.  Stat.,  sees.  5270-5279. 


ENFORCEMENT  OF  INTERNATIONAL  LAW.  195 

A  similar  view  was  expressed  by  Justice  Catron  in  1852''^  but  in 
1893  the  supreme  court  through  Justice  Gray  sustained  the  early 
position  of  Adams  and  Marshall.^" 

"  The  surrender,  pursuant  to  treaty  stipulations,  of  persons  residing  or 
found  in  this  country,  and  charged  with  crime  in  another,  may  be  made  by 
the  executive  authority  of  the  President  alone,  when  no  provision  has  been 
made  by  treaty  or  by  statute  for  an  examination  of  the  case  by  a  judge  or 
magistrate.  Such  was  the  case  of  Jonathon  Robbins,  under  article  27  of  the 
treaty  with  Great  Britain  of  1794.  in  which  the  President's  power  in  this  re- 
gard was  demonstrated  in  the  masterly  and  conclusive  argument  of  John 
Marshall  in  the  House  of  Representatives." 

However,  as  statutes  now  make  full  provision  for  extradition,  the 
question  of  the  President's  independent  power  is  of  merely  specu- 
lative interest.  The  President  has  authorized  the  extradition  of  a 
fugitive  in  the  absence  of  treaty  in  only  one  case,  that  of  Arguelles 
extradited  to  Spain  by  President  Lincoln  in  1864,  and  the  majority 
of  authorities  hold  that  he  here  acted  in  excess  of  power.  Wil- 
loughby  believes  that  Congress  might  authorize  presidential  extra- 
dition in  the  absence  of  treaty,  but  since  international  law  does  not 
require  such  extradition  it  is  hard  to  locate  the  source  of  such  a 
power  of  Congress.®^ 

It  was  held  by  Justice  Story  that  the  President  did  not  have 
power  to  authorize  the  carrying  out  of  awards  of  foreign  consuls 
based  on  treaty  in  the  absence  of  congressional  legislation.^^  It 
would  seem  that  by  analogy  to  the  case  of  extradition  of  fugitives, 
the  President  might  authorize  the  return  of  deserting  seamen  on 
the  basis  of  treaty  provisions  but  no  case  involving  the  point  seems 
to  have  arisen  and  legislation  was  early  provided.  It  has  been  stated 
by  Attorney  General  Gushing  that  there  is  no  authority  to  return 
deserting  seamen  in  the  absence  of  treaty.  As  has  been  noted  the 
statutes  and  treaties  on  this  subject  were  both  terminated  by  the 
La  Follette  Seaman's  Act  of  1915.®^ 


''^ In  re  Kaine,  14  How.  103,  in   (1852). 

80Fong  Yue  Ting  v.  U.  S.,  149  U.  S.  698,  714  (1893) 

81  Supra,  sec.  122. 

82  Moore,  Digest,  2 :  298 ;  5  :  223. 

s^Cushing,  Att.  Gen.,  6  Op.  148,  209;  Moore,  Digest,  4:  417-424;  Crandall, 
op.  cit.,  p.  233;  supra,  sec.  118. 


196     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

On  August  4,  1793,  Hamilton  issued  instructions  to  customs 
officials  for  the  enforcement  of  neutrality  and  in  the  World  War 
instructions  for  the  supervision  and  censorship  of  radio  stations,  the 
detention  of  vessels  suspected  of  carrying  arms  to  belligerent  war- 
ships and  of  submarines  intended  for  sale  to  belligerents  were  based 
on  independent  executive  authority.^*  Subsequent  statutes  have 
authorized  most  of  these  instructions.^^  In  the  case  of  Ex  parte 
Toscano®*'  the  Federal  District  Court  held  that  insurgent  Mexican 
troops  entering  the  territory  and  interned  according  to  provisions  of 
the  Vth  Hague  Convention,  under  executive  authority,  were  entitled 
to  no  relief  under  constitutional  guarantees.  "  Due  process  of  law  " 
had  been  given  them  through  executive  compliance  with  the  treaty, 
which  was  itself  "  supreme  law  of  the  land."  It  appears  that  the 
President  has  considerable  independent  power  to  authorize  military 
and  administrative  action  when  necessary  to  enforce  treaties  or 
statutes,  but  in  view  of  the  wide  powers  expressly  conferred  upon 
him  by  acts  of  Congress  it  is  now  seldom  necessary  for  him  to  go 
outside  of  such  express  delegations. 

D.     Enforcement  by  tJic  Courts. 

128.  Early  Assumptions  of  Common  Law  Criminal  Jurisdiction  by 
Federal  Courts. 
In  his  first  neutrality  proclamation  of  April  22,  1793,  President 
Washington  stated  that  he  had :" 

"  given  instructions  to  those  officers  to  whom  it  belongs  to  cause  prosecutions 
to  be  instituted  against  all  persons  who  shall  within  the  cognizance  of  the 
courts  of  the  United  States  violate  the  law  of  nations  with  respect  to  the 
powers  at  war  or  any  of  them." 

On  the  basis  of  this  proclamation  prosecution  was  brought  against 
Gideon  Henfield  for  aiding-  in  fitting  out  and  serving  on  a  vessel 


8*  Am.  State  Pap.,  For.  Rel.  i:  140;  Moore,  Digest,  7:  891;  Richardson, 
Messages,  10:  86;  Naval  War  College,  International  Law  Topics,  1916,  pp. 
no,  115;  Atn.  Jl.  Int.  Law,  9:  177;  Wright,  The  Enforcement  of  International 
Law,  p.  122. 

85  Supra,  sec.  115. 

^^  Ex  parte  Toscano,  208  Fed.  938  (1913). 

s'^ii  Stat.  753;  Richardson,  Messages,  i:  157. 


ENFORCEMENT  OF  INTERNATIONAL  LAW.  197 

for  the  use  of  France  then  at  war  with  Great  Britain.  The  United 
States  circuit  court  of  Pennsylvania,  composed  of  Justices  Wilson, 
Iredell  and  Peters,  asked  the  Grand  Jury  to  return  an  indictment 
against  him  for  an  offense  against  the  law  of  nations.  Although 
the  Grand  Jury  refused  to  indict,  the  opinion  of  the  court  was  clear 
that  federal  courts  had  jurisdiction  to  punish  such  offenses  even 
though  no  express  statute  defined  the  offense  or  conferred  the  juris- 
diction. Justice  Jay  expressed  a  similar  opinion  in  another  charge 
to  the  Grand  Jury  and  Attorney  General  Randolph  asserted  it  in 
an  ofificial   opinion.^* 

Jurisdiction  of  crimes  defined  only  by  international  law  was  also 
asserted  in  the  case  of  United  States  v.  Ravara  (1793)  in  which 
the  Genoese  consul  was  indicted  for  sending  threatening  letters  to 
the  British  minister.*^  This  act  was  considered  in  violation  of  the 
diplomatic  protection  guaranteed  to  foreign  ministers  and  hence  a 
breach  of  the  law  of  nations.  Although  the  accused  was  found 
guilty,  he  was  ultimately  released  on  giving  up  his  exequatur.  In 
this  case,  however,  international  law  was  appealed  to  merely  for  a 
definition  of  the  crime,  since  the  circuit  court  had  been  given  juris- 
diction of  cases  against  Consuls  by  act  of  Congress."" 

129.  Federal  Courts  Have  No  Common  Law  Jurisdiction. 

Soon  after,  however,  in  United  States  v.  Worrall  (1798),  the 
criminal  jurisdiction  of  the  federal  courts  was  said  to  rest  on  stat- 
ute alone  and  this  opinion  was  repeated  in  the  Supreme  Court  in 
Ex  parte  Bollman  (1807)  and  United  States  v.  Hudson  (1812)." 
Four  years  later  the  question  was  raised  in  a  slightly  different  form 
in  United  States  v.  Coolidge  (1816).  In  the  circuit  court  Justice 
Story  had  sustained  an  indictment  for  the  forcible  rescue  by  two 


88 /n  re  Henfield,  Fed.  Cas.  No.  6360,  and  ibid.,  p.  11 16;  Am.  State  Pap., 
For.  Rel.,  i :  151. 

89  U.  S.  V.  Ravara,  2  Dall.  297;  Fed.  Cas.  No.  6122;  Moore,  Digest,  5:  65. 

00  Infra,  note  93. 

91  U.  S.  V.  Worrall,  2  Dall.  384;  Ex  parte  Bollman,  4  Cranch  75 ;  U.  S.  v. 
Hudson,  7  Cranch  32;  Willoughby,  op.  cit..  p.  1031  ;  J.  B.  Moore,  Four  Phase* 
of  American  Diplomacy,  1912,  p.  64;  Wharton,  Criminal  Law,  i,  sec.  254. 


198     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

American  privateers  of  a  prize  on  its  way  to  Salem  under  a  prize 
master,  although  no  such  crime  was  specifically  defined  by  statute. 
Reasoning  from  the  nth  section  of  the  judiciary  act  which  gave 
federal  circuit  courts  "exclusive  cognizance  of  crimes  cognizable 
under  authority  of  the  United  States,"  he  said : 

"The  jurisdiction  is  not  as  has  sometimes  been  supposed  in  argument 
over  all  crimes  and  offenses  especially  created  and  defined  by  statute.  It  js 
of  all  crimes  and  offenses  '  cognizable  under  the  authority  of  the  United 
States,'  that  is,  of  all  crimes  and  offenses  to  which,  by  the  Constitution  of 
the  United  States,  the  judicial  power  extends.  The  jurisdiction  could  not, 
therefore,  have  been  given  in  more  broad  and  comprehensive  terms." 

Story's  opinion,  however,  was  not  supported  by  his  brother  justice 
on  circuit  and  on  certification  to  the  supreme  court  he  was  over- 
ruled.^^ However,  though  federal  courts  cannot  assume  jurisdic- 
tion either  under  common  law  or  under  such  broad  grants  as  that 
here  in  question  or  it  may  be  added  under  treaty,  they  may  exer- 
cise criminal  jurisdiction  over  ofifenses  not  specified  by  statute  where 
jurisdiction  has  been  expressly  given  them  by  act  of  Congress.  Thus 
they  may  have  jurisdiction  because  of  the  nature  of  the  parties,  in 
which  case  federal  courts  apply  the  criminal  law  of  the  state  in 
which  they  sit.^^ 

130.  Federal  Courts  Have  No  Criminal  Jurisdiction  from  Treaties 
Alone. 
The  federal  courts  have  refused  to  exercise  jurisdiction  over 
crimes  defined  by  treaty  until  Congress  has  acted.  They  have  fol- 
lowed the  same  opinion  with  reference  to  extradition.  In  the  case 
of  the  British  Prisoners,^*  although  asserting  that  where  extradi- 


32  U.  S.  V.  Coolidge,  Fed.  Cas.  14857,  and  ibid.,  i  Wheat.  415  (1816). 
Rawle  supports  Story's  opinion  with  elaborate  argument  in  A  View  of  the 
Constitution,  1825,  pp.  250-265. 

s'U.  S.  V.  Ravara,  2  Dall.  297,  Fed.  Cas.  No.  6122;  Moore,  5  :  65 ;  Tenn. 
V.  Davis,  100  U.  S.  257;  Duponceau,  op.  cit.,  p.  34;  Willoughby,  op.  cit.^  p. 
1020.  In  the  case  of  an  indictment  against  the  Russian  consul  Kosloff  in  1815 
the  Pennsylvania  court  refused  jurisdiction  (Comm.  v.  Kosloff,  5  Serg.  and 
Rawle  545)1  and  no  action  was  begun  in  the  federal  courts,  although  by 
statute  they  then  had  exclusive  jurisdiction  in  cases  against  consuls.  Du- 
ponceau, op.  cit.,  p.  36;  Moore,  Digest  5:  66. 

»*  The  British  Prisoners,  i  Wood,  and  M.  66. 


ENFORCEMENT  OF  INTERNATIONAL  LAW.  199 

tion  is  required  by  "  the  supreme  law  of  a  treaty,  the  executive  need 
not  wait  .  .  .  for  acts  of  Congress  to  direct  such  duties  to  be  done 
and  how,"  Justice  Woodbury  said  for  the  circuit  court : 

"If  a  treaty  stipulated  for  some  act  to  be  done,  entirely  judicial  ...  it 
could  hardly  be  done  without  the  aid  or  preliminary  direction  of  some  act  of 
Congress  prescribing  the  court  to  do  it  and  the  form." 

At  present  the  law  is  clear.  The  jurisdiction  of  federal  courts, 
with  exception  of  the  original  jurisdiction  of  the  Supreme  Court  de- 
fined by  the  Constitution  itself,  is  confined  to  that  which  Congress 
has  expressly  conferred  and  the  only  offenses  cognizable  are  those 
defined  by  acts  of  Congress,  or,  in  case  jurisdiction  exists  because 
of  the  nature  of  the  parties,  those  defined  by  the  law  of  the  state 
in  which  the  court  is  sitting.  It  may  be  noted  that  extraterritorial 
courts,  authorized  by  treaty  and  established  by  act  of  Congress, 
have  been  given  jurisdiction  over  offenses  committed  by  American 
citizens  within  the  country  wherein  the  court  exercises  authority,  if 
the  offense  is  one  defined  by  act  of  Congress  or  by  common  law  as 
supplemented  by  regulations  issued  by  the  American  minister  in  that 
country  .^^ 

131.  Statutory  Criminal  Jurisdiction  of  Federal  Courts. 

However,  as  has  been  noted,  a  considerable  number  of  offenses 
against  international  law  have  been  defined  by  Congress  and  the 
federal  courts  have  been  given  cognizance  of  them.  The  statutes 
relating  to  the  protection  of  diplomatic  officers,  to  piracies  and 
offenses  on  the  high  seas,  to  offenses  against  foreign  governments 
or  territory  and  to  most  offenses  against  treaties  are  always  oper- 
ative. Those  punishing  offenses  against  neutrality,  however,  are 
operative  onlv  during  the  existence  of  foreign  hostilities,  the  recog- 
nition of  which  belongs  to  the  President.  The  President  has  usually 
issued  a  formal  neutrality  proclamation  calling  attention  to  the  neu- 
trality laws,®"  but  the  courts  have  held  that  the  neutrality  laws  may 


95  Rev.  Stat.,  sec.  4086;  Moore,  Digest,  2:  631. 

86  Printed  in  Richardson,  Messages,  see  index,  "  Neutrality,"  and  Wright, 
Enforcement  of  Int.  Law,  p.  115.  For  those  of  World  War  see  Naval  War 
College,  Int.  Law  Doc,  1916,  p.  82, 


200     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

be  applied  against  insurgents  who  have  in  fact  been  recognized  as 
such  by  the  political  departments  of  the  government  even  if  no 
such   formal  proclamation  has  issued :  ®^ 

"The  distinction,"  said  the  Supreme  Court,  "between  recognition  of 
belligerency  and  recognition  of  a  condition  of  political  revolt,  between  recog- 
nition of  the  existence  of  war  in  a  material  sense  and  of  war  in  a  legal  sense, 
is  sharply  illustrated  by  the  case  before  us.  For  here  the  political  department 
has  not  recognized  the  existence  of  a  de  facto  belligerent  power  engaged  in 
hostility  with  Spain,  but  has  recognized  the  existence  of  insurrectionary  war- 
fare prevailing  before,  at  the  time  and  since  this  forfeiture  is  alleged  to  have 
been  incurred." 

132.  Admiralty  Jurisdiction  of  Federal  Courts. 

Although  criminal  jurisdiction  must  be  given  very  specifically, 
by  act  of  Congress,  this  is  not  true  of  admiralty  jurisdiction.  In 
order  to  enforce  neutrality  the  courts  have  assumed  jurisdiction  to 
restore  prizes  in  cases  not  covered  by  statute,  and  even  before  pas- 
sage of  the  first  neutrality  act,^^  under  the  general  grant  of  ad- 
miralty jurisdiction. 

"  In  the  absence  of  every  act  of  Congress  in  relation  to  this  matter,  t"he 
court  would  feel  no  difficulty  in  pronouncing  the  conduct  here  complained  of 
an  abuse  of  the  neutrality  of  the  United  States,  and  although  in  such  cases 
the  offender  could  not  be  punished,  the  former  owner  would,  nevertheless,  be 
entitled  to  restitution." 

So  said  the  Supreme  Court  in  1819.^"  Almost  one  hundred  years 
later  the  same  view  was  expressed  by  the  Supreme  Court  in  the  case 
of  the  Appam :  ^°° 

"The  violation  of  American  neutrality  is  the  basis  of  jurisdiction,  and 
the  admiralty  courts  may  order  restitution  for  a  violation  of  such  neutrality. 
In  each  case  the  jurisdiction  and  order  rests  upon  the  authority  of  the  courts 
of  the  United  States  to  make  restitution  to  private  owners  for  violations  of 
neutrality  where  offending  vessels  are  within  our  jurisdiction,  thus  vindi- 
cating our  rights  and  obligations  as  a  neutral  people." 

The  federal  courts  also  assume  jurisdiction  to  enforce  the  gen- 
eral maritime  law  through  admiralty  actions  in  rem,  even  when  no 

»TThe  Three  Friends,  166  U.  S.  (1897). 

»8  Glass  V.  The  Betsey,  3  Dall.  6;  Talbot  v.  Jensen,  3  Dall.  133. 

OB  The  Estrella,  4  Wheat.  298,  311. 

JooThe  Appam,  243  U.  S.  124,  156  (1916), 


ENFORCEMENT  OF  INTERNATIONAL  LAW.  201 

statute  specifically  governs  the  case.  Thus  in  the  case  of  the  Bel- 
genland,  the  Supreme  Court  sustained  the  jurisdiction  upon  the  libel 
of  a  Belgian  steamer  for  running  into  and  sinking  a  Norwegian 
barque  in  mid  ocean.^°^ 

"Although  the  courts  will  use  a  discretion  about  assuming  jurisdiction 
of  controversies  between  foreigners  in  cases  arising  beyond  the  territorial 
jurisdiction  of  the  country  to  which  the  courts  belong,  yet  where  such  con- 
troversies are  communis  juris,  that  is,  where  they  arise  under  the  common 
law  of  nations,  special  grounds  should  appear  to  induce  the  courts  to  deny 
its  aid  to  a  foreign  suitor  when  it  has  jurisdiction  of  the  ship  or  party 
charged.  The  existence  of  jurisdiction  in  all  such  cases  is  beyond  dispute; 
the  only  question  will  be,  whether  it  is  expedient  to  exercise  it." 

Although  federal  courts,  under  the  general  grant  of  admiralty 
jurisdiction,  may  take  cognizance  of  all  cases  against  vessels  alleged 
to  have  violated  international  law,  and  decree  confiscation,  restora- 
tion, salvage,  or  damages,  this  does  not  extend  to  criminal  jurisdic- 
tion against  persons.^"^  As  with  offenses  committed  on  land,  so 
offenses  at  sea  are  only  cognizable  when  specifically  defined  by  stat- 
ute. The  court  has  held,  however,  that  the  phrase  "  piracy  as  de- 
fined by  the  law  of  nations,"  is  sufficiently  explicit  to  give  jurisdic- 
tion over  this  offense."^ 

133.  Civil  Jurisdiction  of  Federal  Courts  in  Cases  Affecting  Aliens. 
Due  diligence  in  the  enforcement  of  international  law  requires 
that  justice  be  assured  to  aliens  in  their  claims  against  private  indi- 
viduals arising  within  the  jurisdiction  whether  resting  on  contract 
or  tort.  This  does  not  mean  that  aliens  are  exempt  from  the  law 
of  the  land  with  reference  to  such  claims.  It  does  mean,  however, 
that  (i)  the  law  shall  not  be  unreasonably  discriminatory  against 
them,  (2)  that  courts  exist  and  proceed  in  a  manner  to  give  them 
reasonable  assurance  of  an  impartial  application  of  the  law,  and  (3) 
that  they  are  accorded  opportunity  to  invoke  the  aid  of  the  courts 
in  settlement  of  their  controversies.""*    The  constitutional  guarantees 


101  The  Belgenland,  114  U.  S.  355. 

102  The  Estrella,  4  Wheat.  298,  311. 
103U.  S.  V.  Smith,  5  Wheat.  153  (1820). 

10*  Borchard,  op.  cit.,  pp.  330,  335 ;  Moore,  Digest,  6 :  267,  280. 


202     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

of  due  process  of  law  to  all  "  persons  "  within  the  jurisdiction,  aliens 
as  well  as  citizens,  as  judicially  interpreted  and  enforced  against  both 
state  legislatures  and  Congress,  seem  to  insure  against  unreasonably 
discriminatory  laws.^°^  These  guarantees  as  well  as  the  constitu- 
tional provisions  designed  to  assure  the  independence  of  the  courts, 
such  as  those  giving  security  of  tenure  and  compensation,  together 
with  the  respectable  traditions  of  common  law  judicial  procedure, 
tend  also  to  give  confidence  in  a  fair  procedure.^"^ 

By  permitting  aliens  to  bring  their  suits  against  individuals  before 
such  courts,  the  United  States  will  generally  be  exerting  due  dili- 
gence and  no  international  claim  can  be  made,  whatever  the  decision 
of  the  court,  unless  the  subject  matter  is  controlled  by  international 
law.  The  state  courts  usually  have  common  law  jurisdiction  and 
are  open  to  both  aliens  and  foreign  states  in  all  cases  not  made  ex- 
clusive in  federal  courts,^°'^  but  under  constitutional  and  statutory 
provisions,  the  federal  courts  are  also  available  in  most  cases. 

"The  judicial  power  (of  the  United  States)  shall  extend  to  all  cases  in 
law  and  equity  arising  under  this  Constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their  authority; — to  all 
cases  of  ambassadors,  other  public  ministers  and  consuls; — to  all  cases  of 
admiralty  and  maritime  jurisdiction; — to  controversies  .  .  .  between  a  state 
or  the  citizens  thereof,  and  foreign  states,  citizens  or  subjects.  In  all  cases 
affecting  ambassadors,  other  public  ministers  and  consuls  .  .  .  the  Supreme 
Court  shall  have  original  jurisdiction.  In  all  other  cases  before  mentioned 
the  Supreme  Court  shall  have  appellate  jurisdiction,  both  as  to  law  and  fact, 
with  such  exceptions,  and  under  such  regulations  as  the  Congress  shall 
make."i<'8 

Except  for  the  original  jurisdiction  of  the  Supreme  Court  the  federal 
courts  may  only  exercise  this  judicial  power  as  expressly  given  by 
act  of  Congress. ^°^  Under  present  statutes  ambassadors,  public  min- 
isters and  consuls  may  bring  any  suit  originally  in  the  Supreme  Court 
though  they  may  also  sue  in  the  state  courts.^^°     Foreign  states  and 


"8  U.  S.  Const.  Am.  V,  XIV. 
^^^Ibid.,  Art.  Ill,  sec.  i. 

107  Mexico  V.  Arrangoiz,  ii  How.  Prac.  i  (N.  Y.,  1855)  ;  Scott,  Cases  on 
Int.  Law,  p.  170. 

108  U.  S.  Const.,  Art.  Ill,  sec.  2. 

109  £jr  parte  McCardle,  7  Wall.  506;  Willoughby,  op.  cit.,  p.  976. 
"0  Judicial  Code  of  191 1,  sec.  233,  36  Stat.  1156. 


.ENFORCEMENT  OF  INTERNATIONAL  LAW.  203 

aliens  may  bring  suits  against  a  citizen  in  the  federal  district  court 
if  over  $3,000  is  in  controversy  or  if  "  for  a  tort  only,  in  violation 
of  the  law  of  nations  or  of  a  treaty  of  the  United  States."  "^  They 
may  also  bring  suits  against  citizens  under  many  special  types  of 
law,  whatever  the  matter  in  controversy,  such  as  suits  within  the 
admiralty  and  maritime  jurisdiction,  suits  under  the  copyright,  pat- 
ent, trademark,  commercial,  bankruptcy',  immigration  laws,  etc.^^^ 
Also  all  suits  in  which  a  deprivation  of  constitutional  right  is 
claimed.^"  Even  if  they  begin  action  in  a  state  court,  appeal  lies 
from  the  highest  state  court  to  the  Supreme  Court  of  the  United 
States  if  a  right  under  the  Constitution,  an  act  of  Congress,  a  treaty 
or  any  authority  under  the  United  States  is  claimed.^^*  The  courts 
are  not  ordinarily  open  to  civil  suits  by  one  alien  against  another,^^"^ 
though  in  admiralty  actions  in  rem  arising  under  the  general  mari- 
time law  on  the  high  seas,  where  the  two  aliens  are  of  different 
nationality,  such  cases  will  usually  be  heard. ^^^  Cases  against  aliens 
may  in  many  cases  be  removed  to  federal  courts  by  the  defendant 
if  they  are  not  brought  there  originally .^^^ 

134.  Conclusion. 

The  enforcing  of  international  law  and  treaty  in  the  territory  of 
the  United  States  requires  executive  and  judicial  action.  The  Pres- 
ident must  utilize  the  military  and  administrative  forces  to  preserve 
order  and  prevent  violations  of  international  law  and  treaty.  The 
criminal  courts  must  punish  offenders  against  international  law  and 
treaty,  and  the  civil  courts  must  be  prepared  to  afford  relief  to  aliens 
with  just  claims  against  individuals.  Under  the  American  consti- 
tutional system  the  President  has  power  to  direct  existing  military 
and  civil  administrations,  to  enforce  the  laws  and  treaties  and  pre- 


m  Ibid.,  sec.  24,  pars,  i,  17. 

112  ii);(i,  sec.  24,  pars.  3,  7,  8,  19,  22. 

113  Ibid.,  sec.  24,  pars.  12-14. 

^'^*  Ibid.,  sec.  237,  as  amended  Dec.  23,   1914,  38  Stat.  790,  and  Sept.  6, 
1916,  39  Stat.  726. 

11"  Montalet  v.  Murray,  4  Cranch  46. 
118  The  Belgenland,  114  U.  S.  355. 
11^  Ibid.,  sees.  28,  31 ;  supra,  sec.  105. 


204     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

vent  obstructions  of  national  services.  However,  the  tendency  has 
been  to  confine  this  action  to  circumstances  in  which  it  is  author- 
ized by  specific  legislation. 

The  state  courts  are  bound  to  apply  treaties  and  are  open  to 
civil  suits  by  aliens  but  federal  courts  are  dependent  on  statute  for 
jurisdiction.  The  broad  grants  of  jurisdiction  in  admiralty  matters, 
suits  involving  treaties,  and  the  civil  rights  of  aliens,  give  the  fed- 
eral courts  an  opportunity  to  afford  relief  in  civil  matters,  but  for 
enforcing  criminal  penalties  for  violations  of  international  law  or 
treaty,  they  must  be  endowed  with  specific  power.  Congress  must 
legislate  or  the  United  States  may  find  itself  without  the  means  nec- 
essary for  exercising  due  diligence  in  enforcing  international  law 
and  treaties  within  its  territory. 


CHAPTER  XIII. 

The  Power  to  Meet  International  Responsibilities  through 
Performance  of  National  Obligations. 

135.  Nature  of  this  Responsibility. 

The  responsibility  of  the  nation  for  the  non-fulfillment  of  its 
obligations  requires,  not  only  that  each  organ  of  the  government 
employ  its  powers  to  the  fullest  extent  to  perform  all  acts,  which 
are  specifically  required  by  treaty,  agreement,  contract,  or  the  oper- 
ation of  international  law,  but  also  that  organs  exist  with  powers 
sufficient  to  assure  a  full  performance.  For  acts  of  government 
organs,  the  responsibility  of  the  nation  is  met  if  all  organs  confine 
their  exercises  of  power  within  the  limits  of  international  law  and 
treaty.  For  acts  or  omissions  of  individuals,  the  responsibility  of 
the  nation  is  met  if  all  organs  employ  "  due  diligence  "  to  enforce 
order  and  the  observance  of  international  law  and  treaty  by  persons 
within  their  jurisdiction.  The  present  responsibility  can  be  met 
only  if  organs  exist  competent  and  willing  to  execute  specific  obli- 
gations. 

136.  Performance  of  Obligations  by  the  States. 

The  states  cannot  perform  national  obligations.  They  cannot 
themselves  contract  treaty  or  political  obligations  with  foreign  na- 
tions. They  may  enter  into  contract  with  foreign  individuals,  or 
nations,  as  by  sale  of  bonds  or  other  securities,^  but  a  failure  to 
pay  these  would  not  involve  a  national  responsibility  so  long  as  the 
foreign  bondholder  has  as  favorable  an  opportunity  to  collect  as 
the  domestic.^  Some  of  the  states  have  established  courts  of  claims 
in  which  they  may  be  sued,  though  the  general  principle  of  the 
non-suability  of  sovereigns  applies  to  them.^  While  under  the  Xlth 
amendment  states  cannot  be  sued  by  foreign  individuals  in  the  fed- 


1  Infra,  sec.  157. 

2  Supra,  sec.  89,  pars.  2,  3. 

*Willoughby,  op.  cit.,  p.  1105;  Wright,  Enforcement  of  Int.  Law,  p.  103. 

205 


206     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

eral  courts,  there  seems  to  be  no  constitutional  bar  to  such  a  suit 
by  foreign  states.  National  statutes,  however,  have  not  provided 
for  such  a  jurisdiction  and  commentators  doubt  whether  it  could  be 

exercised.* 

In  case  of  mob  violence  in  the  states  we  have  seen  that  the 
national  government  is  responsible  for  a  lack  of  due  diligence,  and 
this  irrespective  of  remedies,  such  as  action  against  counties  or  munic- 
ipalities, which  the  state  law  may  give.^  "The  Italian  Govern- 
ment," wrote  Baron  Fava,  Italian  Ambassador,  in  reference  to  the 
lynching  of  three  Italians  in  Erwin,  Mississippi,  in  1901,  and  in  re- 
sponse to  the  American  suggestion  that  Mississippi  was  responsible, 
"  will  not  cease  to  denounce  the  systematic  impunity  enjoyed  by 
crime,  and  to  hold  the  federal  government  responsible  therefor."  ° 

A.     The  Nature  of  National  Obligations. 

137.  Obligations  Founded  on  International  Agreement. 

National  obligations  may  arise  either  (i)  from  express  agree- 
ment or  (2)  from  the  operation  of  general  international  law. 

Agreement  of  the  nation  may  be  evidenced  by  contracts  with 
individuals,  by  executive  or  military  agreements,  or  by  conventions 
or  treaties.  Any  of  these  instruments  if  made  by  competent  author- 
ity will  bind  the  nation.  Contracts  or  executive  agreements  usually 
require  the  performance  of  definite  acts  such  as  the  payment  of 
money,  the  movement  of  troops,  the  conclusion  of  a  treaty,  but  con- 
ventions and  treaties  often  state  general  principles  of  law  for  the 
guidance  of  individuals  as  well  as  specific  obligations  to  be  performed 
by  public  authorities.     During  the  nineteenth  century  treaties  have 


*Willoughby,  op.  cit.,  p.  1060.  In  Cherokee  Nation  v.  Georgia  (5  Pet.  i, 
1831)  jurisdiction  was  refused  on  the  ground  that  the  Cherokees  were  not  a 
foreign  nation,  thus  implying  that  if  they  had  been  jurisdiction  would  have 
existed.  The  only  case  between  a  state  and  an  undoubted  foreign  nation  is 
that  of  Cuba  v.  N.  Car.  (242  U.  S.  665,  1917),  but  no  opinion  was  given 
because  of  dismissal  on  motion  of  the  plaintiff.  See  Scott,  Judicial  Settle- 
ment of  Controversies  between  States  of  the  American  Union,  1919,  pp. 
105-106. 

5  Supra,  sec.  89,  pars.  2,  sec.  120. 

8  Moore,  Digest,  6 :  849. 


PERFORMANCE  OF  NATIONAL  OBLIGATIONS.  207 

tended  to  be  regulative,  rather  than  poHtical  in  character.  Their 
predominant  character  has  changed  from  that  of  political  contracts 
to  codes  of  law  or  administrative  regulations  providing  for  inter- 
national administration  in  a  smaller  or  wider  circle.'^ 

A  similar  distinction  has  been  recognized  by  American  courts, 
in  classifying  certain  treaty  provisions  as  "  self-executing."  Prac- 
tically this  distinction  depends  upon  whether  or  not  the  courts  and 
the  executive  are  able  to  enforce  the  provision  without  enabling 
legislation.  Fundamentally  it  depends  upon  whether  the  obligation 
is  imposed  on  private  individuals  or  on  public  authorities. 

"A  treaty,"  said  Chief  Justice  Marshall,  "is  in  its  nature  a  contract  be- 
tween two  nations,  not  a  legislative  act.  ...  In  the  United  States  a  different 
principle  is  established.  Our  Constitution  declares  a  treaty  to  be  the  law  of 
the  land.  It  is,  consequently,  to  be  regarded  in  courts  of  justice  as  equivalent 
to  an  act  of  the  legislature,  whenever  it  operates  of  itself,  without  the  aid  of 
any  legislative  provision.  But  when  the  terms  of  the  stipulation  import  a 
contract,  when  either  of  the  parties  engages  to  perform  a  particular  act,  the 
treaty  addresses  itself  to  the  political,  not  the  judicial,  department;  and  the 
legislature  must  execute  the  contract  before  it  can  become  a  rule  for  the 
courts."  8 

Treaty  provisions  which  define  the  rights  and  obligations  of 
private  individuals  and  lay  down  general  principles  for  the  guidance 
of  military,  naval  or  administrative  officials  in  relation  thereto  are 
usually  considered  self-executing.  Thus  treaty  provisions  assuring 
aliens  equal  civil  rights  with  citizens,  defining  the  limits  of  national 
jurisdiction,  and  prescribing  rules  of  prize,  war  and  neutrality,  have 
been  so  considered.^  However,  many  treaty  provisions  are  difficult 
to  classify.  Thus  a  treaty  regulating  the  taking  of  seal  in  a  de- 
fined area  of  Behring  Sea  and  specifically  enjoining  the  governments 
concerned  to  enforce  the  regulation  imposes  a  primary  obligation 
upon  individuals  and  might  seem  self-executing.     But  it  also  imposes 


7  Wright,  Am.  Jl.  Int.  Law,  13 :  243,  245. 

8  Foster  v.  Neilson,  2  Pet.  253,  314  (1829).     See  also  infra,  sec.  256. 
9Hauenstein  v.   Lynham,    100  U.   S.  483;   La   Ninfa,  75  Fed.  513;   The 

Phoebe  Ann,  3  Dall.  319;  Ex  parte  Toscano,  208  Fed.  938.  There  has  been  a 
question  in  the  United  States  whether  treaties  regulating  commerce  and 
tariffs  are  of  this  kind.     See  infra,  sec.  154. 


208     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

a  responsibility  upon  the  government  to  prevent  infractions  and  pun- 
ish violators.  Extradition  treaties  are  of  similar  character.  They 
affect  primarily  the  individual  fugitive  from  justice  by  withdrawing 
his  right  of  asylum,  but  they  also  specifically  require  the  government, 
to  whose  territory  he  has  f^ed,  to  surrender  him.  In  view  of  the 
constitutional  principle  that  federal  courts  can  only  punish  crimes 
defined  by  statute,^"  such  treaties  are  not  self -executing  in  the 
United  States,  except  in  so  far  as  executive  action  is  sufficient  to 
carry  them  out.^^  They  ordinarily  require  legislation  to  be  effec- 
tively executed.  In  spite  of  this  fact,  the  obligation  of  such  treaties 
rests  primarily  upon  individuals  and  the  responsibility  of  the  govern- 
ment is  measured  by  the  standard  of  "  due  diligence,"  whether  or 
not  the  treaty  specifies  the  steps  which  are  to  be  taken  in  prevention 
and  punishment.^^  Thus  such  treaty  provisions  have  been  consid- 
ered in  the  preceding  chapter. 

On  the  other  hand  certain  treaty  obligations  are  addressed  solely 
to  public  authorities,  of  which  may  be  mentioned  those  requiring 
the  payment  of  money,  the  cession  of  territory,  the  guarantee  of 
territory  or  independence,  the  conclusion  of  subsequent  treaties  on 
described  subjects,  the  participation  in  international  organizations, 
the  collection  and  supplying  of  information,  and  direction  of  postal, 
telegraphic  or  other  services,  the  construction  of  buildings,  bridges, 
lighthouses,  etc.  It  is  with  the  power  to  perform  such  obligations 
that  we  are  here  concerned. 

138.  Obligations  Founded  on  General  International  Law. 

Although  all  international  law  is  said  to  rest  ultimately  upon  the 
agreement  of  states,^^  in  fact  this  agreement  is  assumed  of  prin- 
ciples established  by  long  practice  and  custom  or  the  concurrence  of 
authoritative  writers.^*     International  law  imposes  few  if  in  fact 

^^  Supra,  sec.  129. 

11  Supra,  sees.  125-127, 

12  Supra,  sec.  124. 

I'The  Exchange  v.  McFaddon,  7  Cranch  116. 

^*The  Paquette  Habana,  175  U.  S.  677.  See  for  sources  of  international 
law,  Draft  Code  for  an  International  Court,  Art.  35,  Am.  Jl.  Int.  Law,  Supp., 
14 :  379,  Oct.  1920,  and  Wright,  Minn.  Law  Rev.,  5 :  436. 


PERFORMANCE  OF  NATIONAL  OBLIGATIONS.  209 

any  obligations  requiring  specific  performance.  It  requires  that 
states  preserve  order  in  their  territory  and  exercise  especial  vigilance 
in  such  matters  as  the  protection  of  diplomatic  officers,  the  preser- 
vation of  neutrality,  the  suppression  of  nuisances  such  as  piracy. 
But  here  the  state's  responsibility  is  indirect.  The  law  of  neutrality 
requires  that  neutral  states  intern  troops  and  vessels  illegally  in 
their  jurisdiction  and  restore  prizes  illegally  captured  or  brought 
within  their  jurisdiction,  but  these  requirements  are  designed  pri- 
marily as  means  for  the  enforcement  of  law  against  individuals  in 
the  neutral  state's  jurisdiction.  Certain  ceremonial  observances  such 
as  exchanging  salutes  by  public  vessels,  though  customary,  are  really 
matters  of  courtesy  rather  than  law.  Doubtless  good  citizenship 
in  the  family  of  nations  requires  that  states  exchange  diplomatic 
officers  and  cooperate  in  matters  of  world  service ;  that  they  aid  each 
other  in  the  suppression  of  crime  and  administration  of  justice;  that 
they  attempt  to  prevent  war  by  oflfering  mediation  and  suggesting 
arbitration ;  but  except  as  provided  in  treaty,  international  law  does 
not  require  such  acts.^' 

However,  in  case  international  law  or  treaty  is  violated,  inter- 
national law  imposes  the  obligation  of  reparation.  This  may  take 
the  form  of  payment  of  money,  cession  of  territory,  the  making  of 
formal  amends  such  as  apology  or  salute  of  flag.  Sometimes  a  de- 
mand has  been  made  for  the  trial  or  delivery  of  a  criminal  in  repa- 
ration, but  it  has  been  generally  held  that  international  law  does  not 
require  such  reparation.^^  It  is  with  the  power  to  meet  "  claims  " 
or  demands  for  reparation  and  to  perform  specific  obligations  of 
contract,  agreement  and  treaty  that  we  are  at  present  concerned. 

139.  The  Determination  of  Obligations. 

The  precise  determination  of  national  obligations,  by  the  applica- 
tion of  the  principles  and  rules  of  international  law  and  treaty  to 
concrete  facts,  has  always  proved  a  difficult  problem.  It  is  a  recog- 
nized common  law  principle  that  no  one  should  be  judge  in  his  own 


1"  Hall,  International  Law  (Higgins),  pp.  56-60. 

16  Wright,  Enforcement  of  Int.  Law,  pp.  94-100,  supra,  sec.  no. 


210     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

case,  and  there  has  been  judicial  opinion  in  England  to  the  effect 
that  even  an  act  of  Parliament  infringing  this  principle  would  be  in 
so  far  void/^  The  same  principle  is  recognized  in  the  federal  sys- 
tem of  the  United  States  and  a  jurisdiction  is  established  to  try 
cases  between  the  states  of  the  union.^^  So  also  in  international  law 
it  has  been  recognized  on  occasion  that  treaties  should  be  interpreted 
not  by  each  party  according  to  its  own  opinion/^  but  by  judicial 
process/"  arbitration,^^  or  agreement  of  the  parties.^^ 

However,  there  is  another  common  law  principle,  that  the  state 
cannot  be  sued  without  its  own  consent.  This  principle  is  founded 
not  only  on  the  historical  tradition  that  "  the  king  can  do  no  wrong  " 
and  on  legal  precedents,  but  also  on  practical  grounds.^' 

"A  sovereign,"  said  Justice  Holmes  for  the  Supreme  Court,  "is  exempt 
from  suit  not  because  of  any  formal  conception  or  obsolete  theory,  but  on 
the  logical  and  practical  ground  that  there  can  be  no  legal  right  as  against 
the  authority  that  makes  the  law  on  which  the  right  depends." 

This  consideration  has  led  Hobbes,  John  Austin  and  others  to 
conclude,  starting  from  the  premise  that  the  state  is  the  only  source 
of  law,  that  the  state  cannot  be  subject  to  law  and  consequently  in- 
ternational law  and  treaties  impose  only  moral  obligations.^*     Cer- 


i'^  Dr.  Bonham's  Case,  8  Co.  Rep.  107a,  114a  (1600);  Day  v.  Savadge, 
Hob.  85,  87  (1610)  ;  City  of  London  v.  Wood,  12  Mod.  669,  687  (1701); 
Thayer,  Cases  on  Const.  Law,  47  et  seq.;  Hobbes,  Leviathan,  chap.  15,  Every- 
man ed.,  p.  81. 

18  U.  S.  Const.,  Art.  Ill,  sec.  2. 

1^  "  Neither  of  the  parties  who  have  an  interest  in  the  contract  or  treaty 
may  interpret  it  after  his  own  mind."  Vattel,  Le  Droit  des  Gens,  i :  2,  c.  17, 
sec.  265.     See  also  Wright,  Minn.  Law  Rev.,  4:  29. 

20  Wilson  V.  Wall,  73  U.  S.  83,  84  (1867)  ;  Moore,  Digest,  5:  208;  Cran- 
dall,  op.  cit.,  p.  364. 

2^1  Hague  Conventions,  1907,  arts.  38,  82;  Treaties  concluded  by  United 
States  with  Great  Britain  and  other  countries,  1908,  art.  i,  Malloy,  Treaties, 
814;  League  of  Nations  Covenant,  art.  13. 

22Crandall,  op.  cit.,  pp.  225,  387;  Dalloz,  Juris.  Gen.,  Supt.,  t.  17  (1896), 
s.  V.  Traite  Int.  No.  14;  Wright,  Am.  Jl.  Int.  Law,  12:  92. 

23Kawananako  v.  Polyblank,  205  U.  S.  349,  353  (1907). 

2*  Hobbes,  Leviathan,  chap.  26,  2;  Austin,  Lectures  on  Jurisprudence,  5th 
ed.,  London,  191 1,  i:  263,  278;  Gray,  Nature  and  Sources  of  the  Law.  1909, 
pp.  77-^1;  Holland,  Jurisprudence,  nth  ed.,  pp.  53,  365. 


PERFORMANCE  OF  NATIONAL  OBLIGATIONS.  211 

tainly  an  attempt  to  apply  the  two  common  law  principles  referred 
to  leads  to  an  apparent  contradiction.  By  the  first  the  state  must 
submit  to  suit,  by  the  second  it  cannot  be  sued. 

140.  Justiciable  and  N on- justiciable  Questions. 

In  practice  a  partial  reconciliation  of  the  two  principles  has 
been  reached  through  the  consent  of  states  to  be  sued  or  to  submit 
to  the  decision  of  an  international  authority  in  certain  types  of 
cases.  The  distinction  has  been  made  between  justiciable  and  non- 
justiciable questions.  States  have  admitted  that  questions  of  the 
former  type  ought  to  be  settled  by  impartial  external  authority  and 
have  actually  so  settled  them,  while  in  the  latter  type  of  questions, 
they  have  tenaciously  maintained  the  doctrine  that  the  state  cannot 
be  sued  and  each  has  acted  as  judge  in  its  own  case.^' 

This  distinction  does  not  aid  us  to  determine  what  questions  are 
actually  justiciable  nor  does  the  similar  distinction  often  made  be- 
tween legal  and  moral  obligations.  It  is  doubtless  true,  as  President 
Wilson  and  Vattel  before  him  pointed  out,  that  when  the  element 
of  judgment  exists,  the  decision  belongs  to  the  conscience  of  the 
party  alone,  the  obligation  is  moral,  and  hence  the  question  is  non- 
justiciable.'" But  this  does  not  tell  us  in  what  cases  the  element  of 
judgment  exists.  Nor  do  we  get  farther  along  by  the  definition  of 
non-justiciable  questions,  attempted  in  many  general  arbitrations,  as 
questions  involving  "  national  honor,  vital  interests  and  independ- 
ence." ^^  These  general  terms  can  be  made  as  broad  or  limited  as 
the  inclination  of  the  parties  suggests  in  any  particular  case. 

Attempts  to  define  non-justiciable  questions  have  proved  unsuc- 
cessful, but  this  does  not  mean  that  the  distinction  is  worthless.  The 
truth  is  that  with  the  theory  of  national  sovereignty,  all  national 
obligations,  w^hether  founded  on  treaty  or  general  international  law, 
are  presumed  to  be  moral  obligations  and  hence  non-justiciable.^' 


2"  Crandall,  op.  cit.,  p.  358. 

28  President  Wilson,  Statement  to  Senate  For.  Rel.  Committee,  Aug.  19, 
1919,  Hearings,  66th  Cong.,  ist  sess.,  Sen.  Doc.  No.  106,  p.  515;  Vattel,  Le 
Droit  des  Gens,  Introduction,  sec.  17. 

2'?  See  Treaty  U.  S.-Great  Britain,  1908,  art.  i,  Malloy,  Treaties,  p.  814. 

28  See  Infra,  sec.  142. 


212     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

But  states  have  in  the  past  consented  to  submit  certain  controversies 
to  legal  decision  and  by  classifying  these  controversies  we  can  dis- 
cover what  types  of  dispute  have  actually  been  considered  justiciable. 
We  can  thus  by  induction  arrive  at  a  definition  of  justiciable  ques- 
tions and  regard  all  others  as  non-justiciable.  Such  a  definition  of 
justiciable  questions  has  been  attempted  in  Article  XIII  of  the  League 
of  Nations  Covenant : 

"Disputes  as  to  the  interpretation  of  a  treaty,  as  to  any  question  of  inter- 
national law,  as  to  the  existence  of  any  fact  which  if  established  would  con- 
stitute a  breach  of  any  international  obligation,  or  as  to  the  extent  and  nature 
of  the  reparation  to  be  made  for  any  such  breach,  are  declared  to  be  among 
those  which  are  generally  suitable  for  submission  to  arbitration."  ^sa 

141.  The  Obligation  of  Treaties  and  International  Law. 

Treaties  are  presumably  made  to  be  kept.  "  It  is  an  essential 
principle  of  the  law  of  nations,"  asserted  the  London  protocol  of 
1871,  "that  no  power  can  liberate  itself  from  the  engagements  of 
a  treaty,  nor  modify  the  stipulations  thereof,  unless  with  the  consent 
of  the  contracting  powers  by  means  of  an  amicable  arrangement."  ^^ 
The  same  principle  was  emphasized  by  the  scrap  of  paper  incident 
of  191 4  and  implies  that  treaties  should  be  interpreted  by  impartial 
authority. 

Clearly  if  international  law  deserves  the  name,  its  obligations 
must  be  of  a  legal  character  and  controversies  relating  to  them 
must  be  justiciable.^"  Most  text-writers  recognize  the  distinction  be- 
tween obligations  of  international  law  and  requirements  of  interna- 
tional courtesy  and  comity. ^^  In  the  latter,  an  element  of  judgment 
is  reserved,  the  obligation  is  "  imperfect "  or  moral,  and  contro- 
versies relating  to  them  are  non-justiciable,  but  not  so  with  the 
former.  In  practice  this  distinction  necessarily  exists,  because  by 
definition, -^^  international  law  consists  only  of  those  rules  and  prin- 
ciples for  the  infraction  of  which  nations  have  been  accustomed  to 
make  formal  international  claim  or  protest,  and  hence  for  the  settle- 

2saAlso  in  State  of  Permanent  Court  of  International  Justice,  art.  36. 
2»  Satow,   Diplomatic   Practice,   2 :    131 ;   Hall,   op.   cit.,  p.   365 ;   Wright, 
Minn.  Law  Rev.,  5 :  441-443,  supra,  sec.  33. 

30  See  J.  B.  Moore,  Am.  Pol.  Sci.  Rev.,  9 :  4-6. 
3^  Hall,  op.  cit.,  pp.  14,  56. 
32  Supra,  sec.  9. 


PERFORMANCE  OF  NATIONAL  OBLIGATIONS.  213 

ment  of  which  they  are  not  content  to  rely  on  the  conscience  of 
other  states. 

But  though  treaties  and  international  law  both  impose  obligations 
of  a  theoretically  legal  character,  yet  their  interpretation  is  generally 
a  question  for  determination  by  national  organs  in  first  instance. 
According  to  our  classification,  international  law  and  treaty  impose 
responsibilities  which  may  require  (i)  mere  observance  by  public 
organs,  (2)  enforcement  against  individuals  within  the  jurisdiction 
or  (3)  the  performance  of  specific  acts  by  public  organs.  Now 
primary  decision  upon  the  existence  of  and  means  of  meeting  re- 
sponsibilities of  the  first  two  types  belongs  to  national  organs.  No 
international  controversy  can  occur  until  a  failure  to  meet  the  re- 
sponsibility or  at  least  definite  authorization  of  a  violation  is  al- 
leged.^^  It  is,  therefore,  only  responsibilities  of  the  third  type,  now 
under  consideration,  which  can  raise  a  question  for  international 
discussion,  and  such  a  question  may  be  raised  by  a  claim  for  (i) 
specific  performance  or  (2)  reparation.  These  are  the  two  types  of 
obligations  imposed  by  international  law.^*  They  imply  "  a  tie ; 
whereby  one  (state)  is  bound  to  perform  some  act  for  the  benefit 
of  another  "  ^'^  and  are  thus  to  be  distinguished  from  responsibilities, 
almost  synonymous  with  liabilities,  which  imply  a  situation  in  which 


S3  Friendly  controversies  merely  to  ascertain  rights,  resulting  in  decisions 
of  the  nature  of  declaratory  judgments  would  be  an  exception.  Boundary 
controversies  are  sometimes  of  this  character,  though  usually  they  are  occa- 
sioned by  incidents  alleged  to  constitute  an  encroachment. 

3*  These  two  obligations  bear  a  certain  resemblance  to  the  two  obligations 
known  in  Roman  law  as  obligationes  ex  contractu  and  ex  delicto  and  in  com- 
mon law  as  contracts  and  torts.  There  is,  however,  a  difference.  The  dis- 
tinction between  contracts  and  torts  depends  upon  whether  or  not  the  obliga- 
tion is  founded  on  special  agreement  or  on  general  law ;  whereas  the  distinc- 
tion we  here  make  depends  upon  whether  or  not  the  obligation  can  be  carried 
out  or  merely  compensated  for.  In  fact,  however,  practically  the  only  inter- 
national obligations  which  can  furnish  grounds  for  a  demand  for  specific 
carrying  out  are  founded  on  special  agreements.  But  on  the  other  hand, 
obligations  which  may  furnish  grounds  for  a  claim  for  compensation  may  be 
founded  upon  either  general  law  or  special  agreement.  See  Salmond,  Juris- 
prudence, pp.  558-559- 

s**  Holland,  Jurisprudence,  p.  241. 


214     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

one  state  may  suffer  if  it  acts,  permits  action,  or  fails  to  act  so  as 
to  injure  others.^*' 

142.  Practice  in  Submitting  Disputes  to  Arbitration. 

Although  under  the  League  of  Nations  Covenant,  apparently  any 
question  involving  either  of  these  obligations  should  be  considered 
justiciable,  it  appears  that  in  the  past  states  have  been  very  reluctant 
to  consider  disputes  relating  to  the  performance  of  political  acts, 
even  when  required  by  treaty,  as  fully  justiciable.  They  have  been 
unwilling  to  be  controlled  by  any  authority  other  than  their  own 
consciences  in  questions  involving  sovereignty,  such  as  the  method 
by  which  guarantees  are  to  be  fulfilled  or  laws  enforced  within 
their  own  territory.  Thus  Lord  Derby  said  of  the  Luxemburg  neu- 
tralization guarantee :  "  We  are  bound  in  honor — you  cannot  put 
a  legal  construction  upon  it — to  see  in  concert  with  others  that  these 
arrangements  are  maintained."  ^^  And  President  Wilson  said  of 
the  guarantee  in  Article  X  of  the  League  of  Nations  Covenant :  ^^ 


36  "Liability  or  responsibility  is  the  bond  of  necessity  that  exists  between 
the  wrongdoer  and  the  remedy  of  the  wrong."  (Salmond,  Jurisprudence,  sec. 
126.)  In  the  terminology  which  has  developed  from  discussion  of  Professor 
Hohf eld's  article  on  Fundamental  Legal  Conceptions  {Yale  L.  J.,  23:  16),  we 
say  that  B  is  under  an  obligation  (or  duty)  when  the  services  of  organized 
society  can  be  enlisted  against  him  by  A  and  correlatively  that  A  has  a  right. 
On  the  other  hand,  B  is  under  a  liability  (or  responsibility)  when  organized 
society  permits  A  to  act  against  him  and  correlatively  A  has  a  power.  (See 
addresses  at  meeting  of  Association  of  American  Law  Schools  in  Chicago, 
Dec.  29,  1920,  especially  that  by  Kocourek,  Am.  Law  School  Rev.,  4:  615.) 

Rights  and  obligations  imply  a  society  organized  to  the  extent  of  provid- 
ing agencies  for  authoritatively  judging  justiciable  controversies  between  its 
members.  There  are  no  true  rights  or  obligations  where  each  man  is  judge 
of  the  merits  of  his  own  case.  {Supra,  sec.  139.)  Powers  and  liabilities, 
however,  may  exist  in  a  society  organized  only  to  the  extent  of  refusing  to 
permit  self  help  in  certain  cases.  There  are  no  true  powers  or  liabilities 
where  each  man  is  judge  of  the  limits  of  his  own  competence.  Moral  rights 
and  duties  may  exist  in  a  society  not  organized  at  all.  {Supra,  sec.  140.) 
The  family  of  nations  has  passed  from  the  last  to  the  second  stage  and  is 
slowly  advancing  to  the  first.  {Infra,  sec.  142;  Wright,  Col.  Law  Rev.,  20: 
147-148.) 

3' Hansard,  Debates,  3d  Ser.,  187:  1922;  Hall.  op.  cit.,  p.  355. 

38  Statement  to  Senate  For.  Rel.  Committee,  Aug.  19,  1919,  66th  Cong., 
1st  sess.,  Sen.  Doc.  106,  p.  502. 


PERFORMANCE  OF  NATIONAL  OBLIGATIONS.  215 

"  It  is  a  moral,  not  a  legal,  obligation,  and  leaves  our  Congress  absolutely 
free  to  put  its  own  interpretation  upon  it  in  all  cases  that  call  for  action.  It 
is  binding  in -conscience  only,  not  in  law." 

The  North  Atlantic  Fisheries  arbitration  court  seemed  to  sanc- 
tion the  same  view  when  it  refused  to  hold  that  Great  Britain  was 
bound  to  gain  American  assent  to  fishery  regulations  within  those 
territorial  waters  in  which  the  United  States  claimed  a  treaty 
servitude :  ^^ 

"  The  right  to  regulate  the  liberties  conferred  by  the  treaty  of  1817  is  an 
attribute  of  sovereignty,  and  as  such  must  be  held  to  reside  in  the  territorial 
sovereign  unless  the  contrary  be  provided." 

In  practice  claims  for  reparation  have  been  the  type  most 
frequently  submitted  to  arbitration,  though  cases  involving  the 
limits  of  jurisdiction  such  as  boundaries,  public  vessels,  etc.,  have 
occasionally  been  so  settled. 

B.  Power  to  Interpret  National  Obligations. 

143.  By  National  Political  Organs:  Congress. 

The  agencies  competent  to  interpret  and  apply  international  law 
and  treaty,  and  thereby  to  decide  upon  the  existence  of  national 
obligations,  may  be  classified  as  (i)  national  political  organs,  (2) 
international  political  organs,  (3)  national  judicial  organs  and  (4) 
international  judicial  or  quasi-judicial  organs. 

Political  questions  according  to  the  courts  are  beyond  their 
competence  and  must  be  left  to  the  political  departments.  Thus 
they  have  held  that  it  belongs  to  the  political  departments  to  decide 
whether  or  not  a  treaty  has  been  terminated  and  until  such  decision 
is  given  the  courts  will  continue  to  apply  it  as  municipal  law.'*"  The 
principle  has  been,  that  the  organ  with  power  to  fulfill  an  alleged 
political  obligation  is  competent  to  decide  whether  the  obligation 
really  exists. 

"  Where  the  construction  of  a  treaty  is  a  matter  of  national  policy,"  wrote 
Secretary  of   State   Bayard,   "  the   authoritative   construction   is   that  of   the 


39  Wilson,  The  Hague  Arbitration  Cases,  Boston,  1915,  p.  154. 
*°  Infra,  sec.  182. 


216     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

political  branch  of  the  government.  It  is  the  function  of  the  Executive  or 
of  Congress,  as  the  case  may  be."  *^ 

So  Congress  has  asserted  that  it  alone  can  interpret  responsibihties 
claimed  to  oblige  an  appropriation  of  money,  a  declaration  of  war 
or  other  act  exclusively  within  its  control.  As  has  been  pointed 
out,  if  the  President  as  the  representative  organ  should  interpret 
such  a  responsibility,  his  interpretation  would  bind  the  United 
States  under  international  law,*^  but  in  recognition  of  the  con- 
stitutional principle  he  has  not  usually  done  so.  Thus  Secretary 
of  State  Bayard  refused  to  authorize  an  unconditional  signature 
of  a  declaration  interpreting  the  Submarine  Cable  Convention  of 
1884:*' 

"  It  is  to  be  observed,"  he  wrote,  "  in  this  connection  that  the  treaty  in 
question  is  not  self-executing,  and  that  it  requires  appropriate  legislation  to 
give  it  eflfect.  If,  under  these  circumstances,  the  Executive  should  now  as- 
sume to  interpret  the  force  and  eflfect  of  the  convention,  we  might  hereafter 
have  the  spectacle,  when  Congress  acted,  of  an  Executive  interpretation  of 
one  purport  and  a  diflferent  congressional  interpretation,  and  this  in  a  matter 
not  of  Executive  cognizance." 

144.  By  National  Political  Organs:    The  Senate. 

The  Senate,  in  consenting  to  the  ratification  of  treaties,  has 
decided  upon  the  action  necessary  to  meet  responsibilities  created 
by  preliminaries  of  peace,  protocols  and  other  agreements  requiring 
the  negotiation  of  subsequent  treaties.  So  the  Senate  assumed  the 
right  to  decide  whether  or  not  ratification  of  the  Treaty  of  Ver- 
sailles was  required  in  fulfillment  of  the  responsibilities  under- 
taken by  the  President's  exchange  of  notes  with  the  Allied  powers 
of  November  5,  191 8,  and  the  armistice  with  Germany  of  Novem- 
ber II.'**  So  also  the  Senate  has  asserted  its  right  to  decide 
whether  a  particular  controversy  is  within  the  scope  of  a  general 
arbitration  treaty,  and  has  therefore  insisted  upon  a  voice  in  the 

*i  Mr.  Bayard,  Sec.  of  State,  to  Mr.  McLane,  Min.  to  France,  Nov.  24, 
1888,  Moore,  Digest,  5 :  209.  See  Martin  v.  Mott,  12  Wheat.  19,  infra,  sec. 
223,  note  97. 

*2  Supra,  sees.  34,  38. 

*3  Note  cited,  supra,  note  41. 

**  Supra,  sec.  30,  note  53. 


PERFORMANCE  OF  NATIONAL  OBLIGATIONS.  217 

conclusion  of  the  compromis  submitting  a  particular  case  to 
arbitration.  The  latter  claim  has  not  been  admitted  by  Presidents 
or  supported  by  the  better  authorities,  who  have  held  that  the 
power  to  apply  a  general  treaty  to  particular  cases  is  not  a  political 
question  and  may  be  delegated.*^  With  reference  to  general  and 
permanent  interpretations  of  treaties  or  agreements,  however,  the 
President  has  admitted  the  Senate's  claim. 

"  Had  the  protocol  varied  the  treaty,  as  amended  by  the  Senate  of  the 
United  States,"  wrote  President  Polk  in  reference  to  a  protocol  explaining 
the  treaty  of  Guadaloupe  Hidalgo  with  Mexico,  "  it  would  have  no  binding 
eflFect."  *6 

Apparently  the  presumption  that  the  President  speaks  for  the 
nation  would  generally  be  superseded  in  such  a  case  by  the  duty 
of  foreign  nations  to  acquaint  themselves  with  the  authority  in  the 
United  States  competent  to  make  international  agreements,  and 
the  United  States  would  not  be  bound  by  such  general  interpreta- 
tion unless  the  foreign  nation  had  reason  to  suppose  it  had  been 
consented  to  by  the  proper  authorities.*^ 

145.  By  National  Political  Organs:    The  President. 

Where  power  to  fulfill  responsibilities  is  vested  in  the  Pres- 
ident, he  may  decide  what  action  is  necessary.  Thus  Presidents 
have  often  decided  when  the  circumstances  contemplated  by 
treaties  or  agreements  of  guarantee  and  protection,  such  as  those 
with  Colombia  (1846),  Mexico  (1882-1894),  Cuba  (1903)  and 
Hayti  (1916),  exist,  and  on  their  own  responsibility  have  moved 
troops  or  war  vessels.*^  In  his  message  of  December  7,  1903, 
President  Roosevelt  explained  at  length  his  interpretation  of  the 
treaty  of  1846  with  Colombia.  By  Article  35  of  this  treaty  the 
United  States  had  "guaranteed,  positively  and  efificaciously  to 
New  Granada,  (Colombia)  ...  the  perfect  neutrality  of  the  .  .  . 
Isthmus,  with  the  view  that  the  free  transit  from  the  one  to  the 

*5  Supra,  sec.  62. 

46  Moore,  Digest,  5:  208;  see  also  supra,  sees.  ^,  28,  38,  and  infra,  sec. 

177. 

*'^  Supra,  sec.  24. 

*8  Taft,  Our  Chief  Magistrate,  pp.  85-87. 


218     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

other  sea  may  not  be  interrupted  or  embarrassed  in  any  future 
time  while  this  treaty  exists;  and,  in  consequence,  the  United 
States  also  guarantee,  in  the  same  manner,  the  rights  of 
sovereignty  and  property  which  New  Granada  has  and  possesses 
over  the  said  territory."  In  fulfillment  of  this  guarantee  Pres- 
ident Roosevelt  had  ordered  the  war  vessel  Nashville  to  Colon, 
with   instructions :  *^ 

"  In  the  interests  of  peace  make  every  eflfort  to  prevent  Government 
troops  at  Colon  from  proceeding  to  Panama.  The  transit  of  the  Isthmus 
must  be  kept  open  and  order  maintained." 

With  this  action,  the  insurrection  soon  ended  in  success,  and 
President  Roosevelt  promptly  recognized  the  New  Republic  of 
Panama.  In  the  message  he  called  attention  to  previous  occasions 
from  1856  to  1902,  in  which  the  United  States  had  been  obliged 
to  exercise  a  "  police  power "  in  connection  with  this  guarantee 
and  the  President  had  ordered  sailors  and  marines  to  land  and  to 
patrol  the  Isthmus. ^° 

146.  By  International  Political  Organs. 

A  political  interpretation  of  national  obligations  is  not  neces- 
sarily unilateral.  Undoubtedly  agreement  is  a  more  satisfactory 
method  of  reaching  a  decision  and  has  been  judicially  approved. 
Thus  said  Justice  Story  for  the  Supreme  Court :  ^^ 

"  The  parties  who  formed  this  treaty,  and  they  alone,  have  a  right  to 
annex  the  form  of  a  passport.  It  is  a  high  act  of.  sovereignty,  as  high  as  the 
formation  of  any  other  stipulation  of  a  treaty.  It  is  matter  of  negotiation 
between  the  governments.  The  treaty  does  not  leave  it  to  the  discretion  of 
either  party  to  annex  the  form  of  the  passport;  it  requires  it  to  be  the  joint 
act  of  both." 

"  The  interpretation  of  a  treaty  in  case  of  difficulty,"  said  the  French 
Court  of  Cassation.  "  can  result  only  from  a  reciprocal  agreement  of  the  two 
governments."  ^^ 


*8  Richardson,  Messages,  10:  566. 

50  Ibid.,  10 :  664. 

51  The  Amiable  Isabella,  6  Wheat,  i,  71-73  (1821). 

B2Dalloz,  Juris,  Gen.,  Supt.,  t.  17  (1896),  s.  v.  Traite,  Int.,  No.  14. 


PERFORMANCE  OF  NATIONAL  OBLIGATIONS.  219 

An  interpretation  by  political  agreement  would  ordinarily  re- 
quire negotiation  through  the  Department  of  State,  acting  either 
through  the  Secretary  of  State  at  Washington  or  through  a  dip- 
lomatic officer  in  the  foreign  capital.  All  claims  must  be  presented 
to  the  Department  of  State,  not  to  the  President  direct  or  to 
Congress. '^^  If  claims  of  American  citizens  upon  foreign  govern- 
ments, they  must  be  presented  in  proper  form  and  with  ample  evi- 
dence, but  the  department  reserves  full  discretion  to  refuse  to 
press  them.^*  If  claims  from  foreign  citizens  or  governments 
against  the  United  States,  they  must  be  presented  officially  as  from 
the  government  of  the  claimant's  state.  The  Department  of  State 
will  not  consider  claims  from  foreign  individuals,  only  from  rec- 
ognized governments.^' 

However,  the  department  is  free  to  accept  an  offer  of  mediation 
by  a  foreign  government,  or  to  submit  the  controversy  to  a  council 
of  conciliation,  commission  of  inquiry  or  other  body  set  up  to 
discover  facts  and  agree  on  recommendations.^^  Such  recommen- 
dations are  not  binding  upon  the  political  organs  of  the  government 
but  are  often  accepted.  Under  the  Bryan  Peace  treaties  con- 
cluded with  twenty  states  in  1914  and  191 5,  controversies  not 
otherwise  settled  must  be  submitted  to  a  joint  commission  before 
force  is  resorted  to.  Similar  provision  is  made  in  the  League  of 
Nations  Covenant  (Article  XV)." 

The  controversy  may  be  settled  by  the  conclusion  of  a  treaty 
which  is  of  course  binding  on  the  United  States.  Many  claims 
have  been  thus  settled.  The  claims  of  the  United  States  on 
account  of  spoliations  by  French  vessels  before  1800  and  the 
claims  of  France  for  reparation  on  account  of  the  alleged  non- 
fulfillment of  the  alliance  treaty  of  1778  were  balanced  off  by  the 
treaty    of    i8or.     Claims    against    France    were    liquidated    by    a 

53  Borchard,  op.  cit.,  pp.  355,  653 ;  Moore,  Digest,  4 :  687,  781 ;  supra,  sec. 
12,  note  22. 

<**  Moore,  Digest,  6:  609  et  seq. 

^^  Ibid.,  6:  607-609;  4:  694. 

^^  Ibid.,  6:  1012  et  seq.;  Borchard,  op.  cit.,  p.  366  ct  seq. 

^"^  Canadian  Boundary  controversies  must  be  submitted  to  a  commission 
by  art.  viii  of  the  treaty  of  191 1,  Charles,  Treaties,  p.  42, 


220     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

treaty  concluded  in  1831.  Treaties  of  peace  usually  liquidate  pre- 
war claims.  This  was  true  of  the  treaties  of  Guadaloupe  Hidalgo 
and  Paris.     By  article  VII  of  the  latter: 

"  The  United  States  and  Spain  mutually  relinquish  all  claims  for  indem- 
nity, national  and  individual,  of  every  kind,  of  either  Government,  or  of  its 
citizens  or  subjects,  against  the  other  Government,  that  may  have  arisen  since 
the  beginning  of  the  late  insurrection  in  Cuba  and  prior  to  the  exchange  of 
ratifications  of  the  present  treaty,  including  all  claims  for  indemnity  for  the 
cost  of  the  war." 

Often  such  a  treaty  liquidation  will  involve  an  obligation  of  the 
Government  to  compensate  its  own  citizens. ^^  This  was  true  of 
the  provision  just  stated,  which  was  followed  by  the  statement  that : 

"The  United  States  will  adjudicate  and  settle  the  claims  of  its  citizens 
against  Spain  relinquished  in  this  article." 

Boundary  questions  have  often  been  settled  by  treaty,  as  was  the 
Maine  Boundary  by  the  Webster-Ashburton  treaty  of  1842  and  the 
Oregon  boundary  by  a  treaty  of  1846. 

The  power  to  settle  claims  against  the  government  by  agree- 
ment has  sometimes  been  delegated  to  officers  other  than  the  Secre- 
tary of  State.     Thus  an  act  of  March  2,  1919,  provided :  ^' 

"The  Secretary  of  War,  through  such  agency  as  he  may  designate  or 
establish,  is  empowered,  upon  such  terms  as  he  or  it  may  determine  to  be  in 
the  interest  of  the  United  States,  to  make  equitable  and  fair  adjustments  and 
agreements,  upon  the  termination  or  in  settlement  or  readjustment  of  agree- 
ments or  arrangements  entered  into  with  any  foreign  government  or  govern- 
ments or  national  thereof,  prior  to  November  twelfth,  nineteen  hundred  and 
eighteen,  for  the  furnishing  to  the  American  Expeditionary  Forces  or  other- 
wise for  war  purposes  of  supplies,  materials,  facilities,  services,  or  the  use  of 
property,  etc." 

147.  By  National  Courts. 

The  interpretation  and  application  to  concrete  circumstances  of 
international  law  and  treaty  is  not  in  essence  a  political  or  legislative 
act  and  undoubtedly  the  political  organs  may  delegate  power  to 
make  such  interpretation  to  other  organs.     This  power  is  essen- 

"8  Borchard,  op.  cit.,  p.  379;  Moore,  Digest,  6:  1025. 
"40  Stat.,  c.  94,  sec.  3,  Comp.  Stat.,  3115,  14/15C. 


PERFORMANCE  OF  NATIONAL  OBLIGATIONS.  221 

tially  judicial  in  character  and  has  often  been  delegated  to  the 
courts. 

Certain  claims  virtually  against  the  government  may  be  decided 
by  prize  courts.  Such  courts  may  decree  restitution  of  captured 
vessels,  compensation  if  the  vessel  has  been  requisitioned  or  de- 
stroyed, or  damages  if  the  capture  has  been  illegal.  Damages  are 
in  theory  awarded  against  the  officer  making  the  capture,  but  in 
fact  such  awards  are  usually  paid  by  the  government.^"  Federal 
District  Courts  have  been  given  exclusive  jurisdiction  in  prize 
matters  with  appeal  to  the  Supreme  Court.®^  They  are  free  to 
apply  international  law  and  treaty  and  hold  it  their  duty  to  do  so 
except  as  expressly  modified  by  act  of  Congress.®^  Both  neutral 
and  enemy  persons  are  entitled  to  present  claims  in  such  courts.®* 
It  has  been  held  that  prize  courts  may  be  constituted  by  Congress 
alone.  Courts  set  up  under  authority  of  the  President  in  occupied 
territory  cannot  exercise  prize  jurisdiction.®* 

Congress  has  also  established  a  Court  of  Claims  from  which 
appeal  may  be  taken  to  the  Supreme  Court.  Its  jurisdiction  ex- 
tends to  claims  presented  by  aliens  whose  governments  will  recipro- 
cate, not  founded  on  tort,  or  treaty.®^  The  decisions  of  this  court 
or  of  the  Supreme  Court,  if  appeal  is  taken,  are  considered  final  and 
Congress  always  appropriates  therefor.^®  The  Court  of  Claims  may 
also  consider  any  claim  presented  to  it  by  Congress  and  make  a 
report  thereon,  which  however  is  not  binding.®^  Under  the  Tucker 
Act  of  1887  and  subsequent  amendments  the  Federal  District  Courts 


«o  Moore,  Digest,  7:  593-597- 

«i  Judicial  Code  of  191 1,  sec.  24,  par.  3;  sec.  250,  par.  2. 

62  The  Nereide,  9  Cranch  388;  The  Paquette  Habana,  175  U.  S.  677, 
supra,  sec.  106. 

63  The  claimant  in  the  Paquette  Habana,  supra,  was  an  enemy  subject. 
See  British  case,  The  Mowe,  L.  J.  (1915),  P-  57,  Am.  Jl.  Int.  Law,  9:  547- 

64  Jecker  v.  Montgomery,  13  How.  498. 

68  Judicial  Code  of  ign,  sees.  136,  145,  I53,  I55;  36  Stat.  1135,  Willoughby, 
op.  cit.,  p.  982. 

66  U.  S.  V.  New  York,  160  U.  S.  615;  In  re  Sanborn,  148  U.  S.  226;  Wil- 
loughby, p.  1275. 

s'^  Judicial  Code  of  1911,  sec.  151. 


222     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

enjoy  concurrent  jurisdiction  with  the  Court  of   Claims  in  claims 
not  exceeding  $10,000.®^ 

Congress  has  often  set  up  special  courts  or  commissions  to 
settle  claims  of  individuals.  Of  this  character  may  be  mentioned 
commissions  to  liquidate  the  claims  settled  by  the  treaty  with  Spain 
of  1819,  claims  settled  by  the  Alabama  Arbitration  of  1871,  and 
claims  settled  by  the  Spanish  treaty  of  1898.  Sometimes  special 
jurisdiction  is  conferred  to  settle  particular  claims.  So  the  Court 
of  Claims  was  given  jurisdiction  to  settle  the  French  Spoliation 
claims,  the  courts  were  given  jurisdiction  to  settle  various  specified 
types  of  claims  arising  out  of  the  Civil  War,  and  by  an  act  of  i860 
the  federal  courts  were  given  jurisdiction  to  settle  the  claim  of  one 
Repentigny  to  a  tract  of  land  in  Michigan  founded  on  an  ancient 
French  grant.  The  act  expressly  provided  in  this  case  that  the 
decision  should  be  based  on  "  (i)  the  law  of  nations,  (2)  the  laws 
of  the  country  from  which  the  title  was  derived,  (3)  the  principles 
of  justice,  and  (4)  the  stipulations  of  treaties."  "* 

148.  By  International  Courts. 

National  courts  are  bound  by  national  law  if  expressed  in  un- 
mistakable form,  and  may  not  be  free  to  apply  international  law 
and  treaty.  All  international  claims,  whether  decided  upon  by 
national  courts  or  not,  if  not  satisfactorily  settled,  may  be  presented 
to  the  President  through  the  Department  of  State. '^°  As  we  have 
seen  they  may  then  be  settled  by  political  negotiation  and  agree- 
ment or  submission  to  a  political  body  such  as  a  council  of  con- 
ciliation. However,  the  department  may  submit  them  to  arbitra- 
tion or  an  international  court  and  under  the  provisions  of  certain 
treaties  it  is  bound  to  so  submit  certain  types  of  controversies.  By 
a  treaty  with  various  American  states  adopted  at  the  Fourth  Inter- 
national American  Congress  in  1910:^^ 

"  The  High  Contracting  Parties  agree  to  submit  to  arbitration  all  claims 
for  pecuniary  loss  or  damage  which  may  be  presented  by  their  respective  citi- 
zens  and  which   cannot  be  amicably  adjusted  through  diplomatic   channels, 


^^  Ibid.,  sec.  24,  par.  20. 

«»U.  S.  V.  Repentigny,  5  Wall.  211   (1866). 

"°  Supra,  sec.  12. 

^1  Charles,  Treaties,  etc.,  p.  346. 


PERFORMANCE  OF  NATIONAL  OBLIGATIONS.  223 

when  said  claims  are  of  sufficient  importance  to  warrant  the  expense  of 
arbitration." 

"The  decision  shall  be  rendered  in  accordance  with  the  principles  of 
international  law." 

By  the  II  Hague  Convention  of  1907  armed  force  cannot  be  used 
for  the  recovery  of  contract  debts  between  governments  unless  an 
offer  of  arbitration  has  been  refused,  and  by  a  large  number  of 
treaties  concluded  in  1908  for  five  years,  most  of  which  have  since 
been  renewed,  the  United  States  has  agreed  to  submit  to  arbitra- 
tion "  Differences  which  may  arise  of  a  legal  nature  or  relating  to 
the  interpretation  of  treaties  existing  between  the  two  contracting 
parties  and  which  it  may  not  have  been  possible  to  settle  by  di- 
plomacy "  and  which  "  do  not  affect  the  vital  interests,  the  inde- 
pendence, or  the  honor  of  the  two  Contracting  States,  and  do  not 
concern  the  interests  of  third  parties."  ''^  The  League  of  Nations 
Covenant  ( A.rt.  XIII)  recommends  the  submission  of  specified 
types  of  cases  to  arbitration  or  to  the  proposed  International  Court 
of  Justice  but  does  not  require  it. 

In  making  such  submissions,  if  no  general  treaty  exists,  a  special 
treaty  to  which  the  Senate  has  consented  is  necessary  for  the  sub- 
mission to  arbitration  of  national  claims  or  claims  by  foreign  states 
or  individuals  against  the  United  States.''^  Claims  of  American 
citizens  against  foreign  states  may  be  submitted  on  the  basis  of  a 
compromis  under  authority  of  the  President  or  Secretary  of  State, 
since  it  is  within  the  discretion  of  these  officials  to  decide  whether 
such  claims  shall  be  pressed  at  all.''*  Even  if  an  arbitration  of  such 
claims  results  successfully  for  the  United  States  the  government 
may  withhold  the  money  from  the  individual  claimant  if  it  discovers 
fraud.  Thus  claimants  in  the  L'Abra  and  Wyle  claims  against 
Mexico  were  unable  to  compel  the  Secretary  of  State  by  manda- 
mus to  turn  over  to  them  the  money  paid  by  Mexico  to  the  United 
States  as  a  result  of  the  arbitration.''     The  United  States  govern- 


T2  Malloy,  Treaties,  p.  814. 

T3  Foster,  Yale  L.  J.,  11:  77;  Moore,  Digest  5:  211. 

74  J.  B.  Moore,  Pol.  Sci.  Quar.,  20:  403;  Willoughby,  op.  cit.,  p.  475; 
Moore,  Digest,  5:  211. 

-5  L'Abra  Silver  Mining  Co.  v.  U.  S.,  175  U.  S.  423  (1899)  :  Foster,  The 
Practice  of  Diplomacy,  374-377- 


224     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

ment  had  discovered  fraud  after  the  arbitration  and  ultimately 
returned  the  money  to  Mexico.  Where  a  general  arbitration  treaty 
exists,  the  better  authorities  hold  that  the  President  may  submit 
claims  falling  within  it  on  his  own  authority,  unless  the  general 
treaty  requires  otherwise.  The  Senate  however  has  taken  a  dif- 
ferent view.^* 

Arbitration  awards  are  considered  final  and  obligatory  and  have 
practically  always  been  met  by  the  United  States."'^  In  the  few 
cases  where  they  have  not,  the  United  States  has  contended  that 
the  arbitration  court  exceeded  or  abused  its  powers. ^^  Unless 
such  exception  is  taken  at  once  by  the  political  organs,  the  courts 
hold  arbitration  awards  authorized  by  treaty  the  supreme  law  of  the 
land.^» 

Although  often  recommended,  no  international  court  of  justice 
was  established  until  1921.  The  International  Prize  Court  to  be  set 
up  by  the  XII  Hague  Convention  of  1907  never  came  into  being. 
Such  a  court,  authorized  by  Article  XIV  of  the  League  of  Nations 
Covenant,  was  established  by  action  of  the  Second  Assembly  of  the 
League,  September,  192 1,  on  the  basis  of  a  code  prepared  by  a  com- 
mission of  jurists  in  1920  and  approved  with  modifications  by  the 
council  and  by  the  First  Assembly  and  ratified  at  that  time  by  29 
members  of  the  League.^*'    An  international  court  of  claims  before 


''•^  Willoughby,  op.  cit.,  p.  475,  supra,  sec.  62,  infra,  sec.  163.  The  Anglo- 
American  claims  treaty  of  1910,  differing  from  those  of  1853  and  1871,  re- 
quires that  each  schedule  of  claims  under  the  treaty  be  approved  by  the 
Senate  as  a  special  treaty  (Charles,  Treaties,  p.  50,  and  Sir  Cecil  Hurst  in 
British  Year  Book  of  International  Law,  2:  193). 

''"'  I  Hague  Conventions,  1907,  pp.  81-83. 

'8  Moore,  Digest,  7:  59-62;  Darby,  International  Tribunals,  1904,  p.  785, 
No.  46. 

'»Comegys  v.  Vasse,  I  Pet.  193,  212;  La  Ninfa,  75  Fed.  513  (1896); 
Moore,  Digest,  7:  55. 

80  For  draft  plan  of  organization  by  Root  et  al.  see  Am.  Jl.  Int.  Law, 
Supp.,  14:  371  (Oct.,  1920),  and  for  code  as  adopted  see  A  League  of  Nations, 
4:  281  et  seq.  13  additional  states  had  signed  but  not  ratified  the  code  in 
September  1921  and  13  states  had  accepted  the  clause  providing  for  com- 
pulsory jurisdiction,  ibid.,  278,  291. 


PERFORMANCE  OF  NATIONAL  OBLIGATIONS.  225 

which  private  individuals  might  bring  cases  against  governments  has 
also  been  suggested.    With  reference  to  such  a  court  Borchard  says :  ^'• 

"  The  divorce  of  pecuniary  claims  from  political  considerations  a  union, 
which  now  not  only  results  in  inexact  justice,  but  often  gross  injustice,  and 
the  submission  of  such  claims  to  the  determination  of  an  independent  tribunal, 
must  make  a  universal  appeal  to  man's  sentiment  for  justice." 

C  Power  to  Perform  National  Obligations. 

149.  Appropriations. 

A  decision  having  been  made  as  to  what  action  is  required  in 
order  to  meet  the  obligation,  it  becomes  the  duty  of  organs  em- 
powered thereto  by  the  Constitution  to  perform  those  acts. 

Under  the  power  to  raise  taxes  for  the  general  welfare,  Congress 
undoubtedly  has  power  to  make  appropriations  for  this  purpose. 
Where  Congress  itself  has  decided  that  the  obligation  is  due  it  will 
of  course  make  the  appropriation.  Where  a  decision  by  a  na- 
tional court  acting  within  its  jurisdiction  or  an  international  arbitra- 
tion court  has  been  given,  appropriations  have  been  made  as  a 
matter  of  course.  Where  the  Department  of  State  has  admitted 
the  validity  of  a  claim  Congress  has  generally  made  the  appropria- 
tion. Thus  on  January  30,  1896,  Secretary  of  State  Olney,  after 
discussion  with  the  Italian  Ambassador  with  reference  to  the  lynch- 
ing of  three  Italian  citizens  in  Colorado,  reported  to  the  President: 

"  The  facts  are  without  dispute  and  no  comment  or  argument  can  add  to  the 
force  of  their  appeal  to  the  generous  consideration  of  Congress."  ^2 

President  Cleveland  said  in  his  message  to  Congress  of  February 
3,  1896:83 

"  Without  discussing  the  question  of  the  liability  of  the  United  States  for 
these  results,  either  by  reason  of  treaty  obligations  or  under  the  general  rules 
of  international  law,  I  venture  to  urge  upon  the  Congress  the  propriety  of 
making  from  the  public  Treasury  prompt  and  reasonable  pecuniary  provision 
for  those  injured  and  for  the  families  of  those  who  were  killed." 


81  Borchard,  op.  cit.,  p.  864.     See  also  pp.  328,  2,73,  443- 

82  U.  S.  For.  Rel,  1895,  2 :  938 ;  Moore,  Digest,  6 :  842. 

83  Richardson,  Messages,  9:  664;  Moore,  Digest,  6:  843. 


226     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

By  an  act  of  June  30,  1896,  Congress  provided:®* 

"To  the  Italian  Government  for  full  indemnity  to  the  heirs  of  three  of  its 
subjects  who  were  riotously  killed,  and  to  two  others  who  were  injured 
in  the  State  of  Colorado  by  residents  of  that  State,  ten  thousand  dollars." 

Where  appropriation  has  been  required  for  the  execution  of 
treaties.  Congress  has  never  failed  to  act*^  but  has  asserted  a  right 
to  exercise  discretion.     Thus  a  house  resolution  of   1796  relating 

to  the  Jay  treaty  states :  ^* 

"When  a  treaty  stipulates  regulations  on  any  of  the  subjects  submitted 
by  the  Constitution  to  the  power  of  Congress,  it  must  depend  for  its  execution 
as  to  such  stipulations  on  a  law  or  laws  to  be  passed  by  Congress ;  and  it  is 
the  constitutional  right  and  duty  of  the  House  of  Representatives  in  all  such 
cases  to  deliberate  on  the  expediency  or  inexpediency  of  carrying  such  treaty 
into  eflfect  and  to  determine  and  act  thereon  as  in  their  judgment  may  be 
most  conducive  to  the  public  good." 

This  attitude  though  virtually  repeated  on  several  later  occasions 
has  not  been  generally  approved  outside  of  the  House  of  Rep- 
resentatives and  undoubtedly  a  moral  obligation  to  make  the  appro- 
priation exists.®'^ 

150.  Cession  of  Territory. 

Treaties  or  arbitration  awards  may  require  a  cession  of  ter- 
ritory. Such  provisions  affecting  small  tracts  of  territory  in 
boundary  settlements  have  been  considered   self-executing.®*     The 


8*  Moore,  Digest,  6:  843.  In  later  appropriation  acts  for  similar  claims 
Congress  paid  "  out  of  humane  considerations  and  without  reference  to  the 
question  of  liability,  therefor,"  ibid.,  6:  845,  849.  See  also  report  of  Senator 
Lodge,  1 901,  ibid.,  6:  852. 

^^5  Appropriation  acts  for  this  purpose  are  listed,  Crandall,  op.  cit.,  p.  179. 

88  Annals,  4th  Cong.,  ist  sess.,  p.  771.  The  resolution  was  affirmed  with- 
out debate  in  1871.  Cong.  Globe,  426.  Cong.,  ist  sess.,  p.  835;  Wharton,  2:  19; 
Moore,  Digest,  5:  224;  Crandall,  165  et  seq.;  Wright,  Am.  Jl.  Int.  Law,  12: 
66.     See  also  Gallatin  to  Everett,  Jan.,  1835,  Moore,  Digest,  5 :  232. 

^^  Crandall,  op.  cit.,  p.  177;  Willoughby,  op.  cit.,  p.  483;  Dana's  Wheaton, 
sec.  543 ;  Wharton,  Digest,  2 :  67-68 ;  supra,  ■sec.  59 ;  infra,  sec.  256. 

88  The  Webster-Ashburton  treaty  adjusting  the  Maine  Boundary  was  con- 
sidered self-executing  with  respect  to  territory  claimed  by  Maine,  but  given 


PERFORMANCE  OF  NATIONAL  OBLIGATIONS.  227 

same  view  would  probably  be  taken  of  a  large  cession  if  condi- 
tions were  such  that  it  could  be  considered  constitutional.^* 

151.  Guarantees  and  Use  of  Military  Force. 

Treaties  of  guarantee,  or  requiring  the  employment  of  force 
in  policing  or  other  operations  have  usually  been  carried  out  by  the 
President.  Thus  on  many  occasions  the  President  has  dispatched 
troops  to  Panama  in  maintenance  of  the  guarantee  in  the  Colombia 
treaty  of  1846  and  Presidents  have  also  dispatched  troops  to  Cuba, 
Hayti  and  China  in  pursuance  of  treaties  and  protocols  requiring 
protection.""  Congressional  legislation  has  often  provided  expressly 
for  the  use  of  force  in  pursuance  of  treaty.  Article  8  of  the 
Webster-Ashburton  treaty  of  1842  required  that  the  contracting 
powers  keep  naval  forces  of  specified  size  off  the  coast  of  Africa 
for  the  suppression  of  the  slave  trade.  Congress  passed  an  act 
authorizing  the  President  to  dispatch  vessels  for  this  purpose,  and 
the  President  so  acted.'^ 

If  a  guarantee  treaty  requires  a  declaration  of  war.  Congress 
alone  can  carry  it  out,  although  its  discretion  ought  to  be  confined 
to  consideration  of  whether  the  contemplated  circumstances  exist 
and  whether  war  is  the  most  effective  means  of  carrying  out  the 
guarantee.*^ 

152.  Conclusion  of  Subsequent  Treaties. 

Protocols  and  preliminaries  of  peace  may  require  the  conclusion 

to  Canada  by  the  treaty.  Little  v.  Watson,  32  Maine  214,  224  (1850)  ;  Cran- 
dall,  op.  cit.,  p.  223.  The  Supreme  Court  of  the  United  States  has  recognized 
boundary  settlements  between  states  of  the  Union.  Va.  v.  Tenn.,  148  U.  S. 
503.  See  also  La  Ninfa,  75  Fed.  513,  in  which  the  arbitration  award  fixing 
jurisdictional  limits  in  Behring  Sea  was  held  self-executing. 

8»Willoughby,  op.  cit.,  p.  512;  Crandall,  op.  cit.,  p.  220  et  seq.;  supra, 
sec.  50. 

°^  Supra,  sees.  126,  145;  infra,  sees.  221-224. 

SI  Moore,  Digest,  2:  939.  See  also  ibid.,  2:  941;  Rev.  Stat.,  sec.  5557; 
Criminal  Code  of  1910,  sec.  260,  35  Stat.,  1140,  Comp.  Stat.,  sees.  10,  433.  In 
reference  to  Slave  trade  treaty  of  1862,  see  Moore,  Digest,  2 :  946.  In  refer- 
ence to   General  act  of  Brussels   for   suppression   of  the   slave   trade,  ibid., 

2 :  949. 

^^  Supra,  sec.  37,  infra,  sec.  211.     See  also  Wright,  Am.  Jl.  Int.  Law,  12: 

72-79. 


228     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

of  definitive  treaties  along  prescribed  lines.  Such  provisions  can 
only  be  carried  out  by  the  treaty  power.  A  protocol  calling  for 
conclusion  of  a  treaty  for  arbitration  of  the  Behring  Sea  contro- 
versy was  carried  out  by  a  treaty  in  1891.  Spain  objected  to  the 
definitive  treaty  of  peace  as  insisted  upon  by  the  United  States 
in  1898  on  the  ground  that  it  was  in  violation  of  the  preliminaries 
of  peace  in  some  respects.  Treaties  often  require  the  conclusion 
of  subsequent  treaties.  This  has  been  true  of  many  general  arbitra- 
tion treaties  specifically  requiring  special  treaties  submitting  cases 
within  the  scope  of  the  general  treaty.  The  League  of  Nations 
Covenant  contemplates  treaties  on  many  subjects  in  which  interna- 
tional cooperation  is  urged.  In  such  cases  the  treaty  power  may  act 
within  the  discretion  allowed  it  by  the  general  treaty.*^ 

153.  Participation  in  International  Organization. 

Treaties  requiring  the  appointment  of  officers  for  participating 
in  international  organizations,  such  as  the  permanent  Court  of  Ar- 
bitration and  Bureau  established  by  the  I  Hague  Convention  of 
1899,  and  1907,  and  for  putting  administrative  regulations  into 
eflfect  such  as  the  Behring  Sea  seal  fisheries  treaty,  the  international 
radio  treaty,  etc.,  can  be  carried  out  by  the  President,  though 
Congress  has  often  passed  acts  expressly  authorizing  participation 
in  such  organizations  and  enforcement  of  such  regulations."*  If 
permanent  offices  with  a  fixed  salary  are  required,  an  act  of 
Congress  would  be  essential  for  the  execution  of  such  provisions."' 

154.  Commerce  and  Revenue  Laws. 

Treaties  requiring  a  modification  of  the  tariff  system  might  seem 
self-executing  and  have  been  held  so  in  dicta  by  the  courts."®  On 
at  least  one  occasion  a  foreign  state  has  been  given  reduced  rates 

^^  Supra,  sec.  144. 

^*The  President  is  authorized  to  use  naval  vessels  to  enforce  the  Sub- 
marine cable  treaty  of  1885,  by  act  of  Feb.  27,  1888,  25  Stat.  41,  Comp.  Stat., 
sec.  10087.  He  is  authorized  to  enforce  the  Behring  Sea  Seal  fisheries  treaty 
of  191 1  by  act  of  Aug.  24,  1912,  37  Stat.  499,  Comp.  Stat.,  sec.  8838.  For  acts 
authorizing  participation  in  various  international  organizations,  see  infra, 
sec.  242. 

^'^  Infra,  sec.  242. 

»«Bartram  v.  Robertson,  122  U.  S.  116;  Whitney  v.  Robertson,  124  U.  S. 
190;  Willoughby,  op.  cit.,  p.  492. 


PERFORMANCE  OF  NATIONAL  OBLIGATIONS.  229 

on  the  basis  of  treaty  without  congressional  authorization,®^ 
Congress,  however,  has  insisted  that  such  treaties  are  not  self- 
executing  but  require  express  congressional  action  for  execution. 
This  practice  has  generally  been  acquiesced  in  by  the  other  organs 
of  government."* 

155.  Formal  Amends  in  Reparation. 

Satisfactory  reparation  may  sometimes  require  acts  other  than 
the  payment  of  money  or  cession  of  territory.  Formal  amends 
such  as  the  firing  of  salutes  or  sending  of  apologies  may  be  au- 
thorized by  the  President.**  Sometimes  states  have  demanded  that 
individuals  be  criminally  punished  or  turned  over  to  them  for 
punishment  by  way  of  reparation.  Thus,  aside  from  indemnity, 
Italy  demanded  as  reparation  for  the  New  Orleans  lynching  of 
1891 :  "The  official  assurance  by  the  Federal  government  that  the 
guilty  parties  should  be  brought  to  trial."  ^°**  In  his  next  message 
to  Congress  President  Harrison  asked  for  legislation  giving  federal 
courts  jurisdiction  in  such  cases  but  without  success.  Doubtless 
such  legislation  is  expedient  for  meeting  the  international  respon- 
sibility of  enforcing  international  law  and  treaty  within  the  juris- 
diction but  it  cannot  be  said  that  this  particular  form  of  reparation 
is  required. ^°^  The  release  of  prisoners  held  in  custody  in  violation 
of  international  law  is  however  a  form  of  reparation  which  may  be 
demanded.  Such  a  reparation  was  demanded  by  Great  Britain  in 
the  McLeod  case  in  1842}°^  At  present  legislation  provides  for 
release  in  such  cases  on  habeas  corpus  to  the  federal  courts,"' 


CT  Switzerland  on  application  of  Alost-favored-nation  clause  of  treaty  of 
1850,  in  1899.  Moore,  Digest,  5  :  283-284.  See  also  report  of  Ambassador 
Bryce  to  British  Government,  Jan.  31,  1912.  Pari.  Pap.,  Misc.,  No.  5  (1912), 
No,  23,  quoted  in  Ponsonby,  Democracy  and  Diplomacy,  p.  154. 

98Crandall,  op.  cit.,  pp.  195-200;  Wright,  Am.  Jl.  Int.  Law,  12:  68. 

»9  Moore,  Digest,  6:  1034-1037. 

100  Ibid.,  6 :  838. 

101  Supra,  sec.  138. 

102  Moore,  Digest,  2 :  24-30. 

103  Rev.  Stat.,  sec.  753 ;  Comp.  Stat.,  sec.  1281. 


CHAPTER  XIV. 
The  Power  to  Make  International  Agreements. 

156.  Power  of  the  States  to  Make  Agreements  with  Consent  of 
Congress. 

The  courts  have  never  pointed  out  the  exact  distinction  between 
"  Treaties,  AlHances,  and  Confederations,"  which  the  states  cannot 
make  at  all  and  "compacts  and  agreements,"  which  they  can  make 
with  the  consent  of  Congress/  though  Professor  Hall  has  suggested 
that  the  latter  refers  to  "  trifling  and  temporary  arrangements  be- 
tween States  and  foreign  powers  without  substantial  political  and 
economic  efifect."  ^  In  1842,  Chief  Justice  Taney  held,  in  an  evenly 
divided  court,  that  the  extradition  of  a  criminal,  by  the  governor 
of  Vermont  to  Canada,  would  be  an  "  agreement "  with  Canada, 
which  the  state  could  not  make  without  consent  of  Congress.  The 
term,  "agreement,"  he  thought  must  be  construed  so  as  "to  pro- 
hibit (without  consent  of  Congress)  every  agreement,  written  or 
verbal,  formal  or  informal,  positive  or  implied,  by  the  natural  under- 
standing of  the  parties."'  Taney's  view  was  endorsed  by  the  full 
court  forty-four  years  later  in  United  States  v.  Rauscher.* 

There  do  not  appear  to  have  been  any  "  agreements  or  com- 
pacts "  made  with  consent  of  Congress,  by  states  of  the  Union 
with  foreign  states,  though  following  the  "  Aroostook  War,"  in 
1839,  on  authority  of  the  Secretary  of  State,  the  Governor  of 
Maine,  and  the  Lieutenant-Governor  of  New  Brunswick  concurred 
in  a  modus  vivendi,  pending  settlement  of  the  boundary  contro- 
versy,^ and  the  consent  of  Maine  and  of  Massachusetts  was  gained 
by  the  National  Government  during  negotiation  of  the  Webster- 

^  U.  S.  Const.,  Art.  I,  sec.  10,  cl.  i,  3. 
^Proc.  Acad,  of  Pol.  Set.,  7:  555. 
3  Holmes  v.  Jennison,  14  Pet.  540. 
*  U.  S.  V.  Rauscher,  119  U.  S.  407. 
°  Crandall,  op.  cit.,  p.  144. 

230 


INTERNATIONAL  AGREEMENTS.  231 

Ashburton  treaty  of  1842,  which  finally  settled  the  boundary.® 
"  Agreements  or  compacts  "  with  other  states  of  the  Union  have 
often  been  made  by  states  with  the  consent  of  Congress^  and  there 
is  no  doubt  but  that  the  same  power  applies  to  foreign  states  as 
was,  in  fact,  admitted  by  Chief  Justice  Taney  in  the  case  referred 
to. 

157.  Power  of  the  States  to  Make  Agreements  Independently. 

Although  dicta  in  the  Rauscher  case  asserted  that  "  There  is 
no  necessity  for  the  States  to  enter  upon  the  relations  with  foreign 
nations  which  are  necessarily  implied  in  the  extradition  of  fugitives," 
and  that  "  at  this  time  of  day,  and  after  the  repeated  examinations 
which  have  been  made  by  this  court,  into  the  powers  of  the  Federal 
Government,  to  deal  with  all  such  international  questions  exclu- 
sively," such  a  state  power  cannot  be  admitted,  yet  it  appears  that 
there  may  be  a  small  field  within  which  states  can  agree  with  for- 
eign nations  even  without  consent  of  Congress.  Such  a  field  exists 
in  relations  between  the  states  of  the  Union. 

"  There  are  many  matters,"  said  the  Supreme  Court,  "  upon  which 
different  States  may  agree,  that  can,  in  no  respect,  concern  the  United 
States.  If,  for  example,  Virginia  should  come  into  possession  and  ownership 
of  a  small  parcel  of  land  in  New  York,  which  the  latter  State  might  desire 
to  acquire  as  a  site  for  a  public  building,  it  would  hardly  be  deemed  essen- 
tial for  the  latter  state  to  obtain  the  consent  of  Congress  before  it  could 
make  a  valid  agreement  with  Virginia  for  the  purchase  of  the  land.  If 
Massachusetts,  in  forwarding  its  exhibits  to  the  World's  Fair  at  Chicago, 
should  desire  to  transport  them  a  part  of  the  distance  over  the  Erie  Canal, 
it  would  hardly  be  deemed  essential  for  that'  State  to  obtain  the  consent  of 
Congress  before  it  could  contract  with  New  York  for  the  transportation  of 
the  exhibits  through  the  State  in  that  way.  If  the  bordering  Hne  of  the 
two  States  should  cross  some  malarious  and  disease  producing  district,  there 
could  be  no  possible  reason,  on  any  conceivable  grounds,  to  obtain  the 
consent  of  Congress  for  the  bordering  States  to  agree  to  unite  in  removing 
the  cause  of  the  disease.  So,  in  the  case  of  threatened  invasion  of  cholera, 
plague  or  other  causes  of  sickness  and  death,  it  would  be  the  height  of 
absurdity  to  hold  that  the  threatened  States  could  not  unite  in  providing 
means  to  prevent  and  repel  the  invasion  of  the  pestilence  without  obtaining 
the  consent  of  Congress,  which  might  not  be  in  session. 


« Infra,  sec.  50. 

7  Green  v.   Biddle,   8  Wheat    i;    Crandall,   op.   cit.,  p.    145;   Willoughby, 
op.  cit.,  p.  235. 


2S2     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

"If,  then,  the  terms  'compact'  or  'agreement'  in  the  Constitution  do 
not  apply  to  every  possible  compact  or  agreement  between  one  State  and 
another,  for  the  validity  of  vvrhich  the  consent  of  Congress  must  be  obtained, 
to  what  compacts  or  agreements  does  the  Constitution  apply?  Looking  at 
the  clause  in  which  the  terms  'compact'  or  'agreement'  appear,  it  is 
evident  that  the  prohibition  is  directed  to  the  formation  of  any  combination 
tending  to  the  increase  of  political  power  in  the  States,  which  may  en- 
croach  upon  or  interfere  with  the  just  supremacy  of  the  United   States."  * 

As  the  constitutional  clause  seems  to  place  agreements  with 
foreign  states  in  exactly  the  same  class  as  agreements  with  other 
states  of  the  Union,  it  would  seem  that  states  might  agree  with  for- 
eign nations  for  the  purchase  of  land,  for  the  transit  of  exhibits,  for 
the  removal  of  sources  of  disease,  or,  as  in  the  case  cited,  for  the 
exact  demarkation  of  a  boundary,  without  congressional  consent.* 
Such  agreements  would  have  to  be  entirely  devoid  of  political 
significance,  and  Congress  would  doubtless  be  the  ultimate  judge  on 
that  point.  Acquiescence  by  Congress  in  such  a  compact  would 
be  considered  tacit  consent,  as  was  explained  in  the  case  just  quoted, 
but  if  Congress  subsequently  denied  the  validity  of  a  compact, 
thereby  indicating  its  belief  that  the  compact  was  one  to  which  its 
consent  was  necessary,  the  courts  would  undoubtedly  follow  its 
interpretation  of  a  "  political  question  "  and  hold  such  compact  void. 
Contracts  of  a  purely  business  character  between  a  state  and  a 
foreign  government,  such  as  are  involved  in  the  sale  of  state  bonds 
to  a  foreign  government,  do  not  require  the  consent  of  Congress  any 


8  Va.  V.  Tenn.,  148  U.  S.  503 ;  Willoughby,  loc.  cit. 

^  The  Supreme  Court  said  in  Fort  Leavenworth  R.  R.  v.  Lowe  (114 
U.  S.  541)  :  "It  is  undoubtedly  true  that  the  State,  whether  represented  by 
her  legislature,  or  through  a  convention  specially  called  for  that  purpose,  is 
incompetent  to  cede  her  political  jurisdiction  and  legislative  authority  over 
any  part  of  her  territory  to  a  foreign  country,  without  the  concurrence  of 
the  General  Government,"  though  according  to  this  opinion  she  may  cede 
it  to  the  general  government  itself.  Willoughby  (op.  cit.,  508,  note  23) 
suggests  a  possible  exception  "  with  reference  to  such  an  unimportant  matter 
as  the  administration  of  fishing  upon  boundary  waters."  Barnett  (Yale 
L.  J.,  13,  23,  27)  suggests  that  there  may  "  properly  be  an  autonomy  in  local 
external  affairs,  at  least  as  to  the  States  bordering  on  Canada  or  Mexico, 
just  as  there  is  a  local  autonomy  in  matters  purely  domestic."  Butler, 
however,  doubts  it.  {Op.  cit.,  I,  sec.  123.)  See  Mathews,  The  States 
and  Foreign  Relations,  Mich.  L.  R.,  19:  692. 


INTERNATIONAL  AGREEMENTS.  233 

more  than  do  such  contracts  between  states  of  the  union. ^°  Agree- 
ments and  contracts  of  the  kind  here  referred  to  do  not  involve  a 
national  responsibility.^* 

158.  Power  of  the  National  Government  to  Make  Agreements. 
Thus  with  limited  exceptions,  the  power  to  make  agreements  is 

vested  exclusively  in  the  national  government,  and  apparently  the 
Constitution  vests  it  in  two  authorities,  the  President  acting  alone, 
and  the  President  acting  with  advice  and  consent  of  two-thirds  of 
the  Senate.  President  Washington  pointed  out  in  his  message  on 
the  Jay  treaty  that  the  House  of  Representatives  had  no  part  in 
treaty-making.^-  The  House  has  several  times  asserted,  by  resolu- 
tion, its  power  to  exercise  a  free  discretion  as  to  the  execution  of 
treaties  requiring  an  appropriation  or  other  legislation.  This  has 
never  extended  to  a  claim  to  participation  in  treaty-making,  and 
with  its  more  limited  interpretation  has  never  been  accepted  by 
other  branches  of  the  government. ^^ 

159.  Congress  cannot  Make  International  Agreements. 

It  is  true  that  Congress  has  sometimes  passed  legislation  which 
by  its  terms  is  to  go  into  effect  as  to  any  foreign  nation,  upon  proc- 
lamation by  the  President,  that  such  nation  offers  a  specified  reci- 
procity, but  such  arangements  are  not  agreements,  since  either 
party  is  entitled  to  discontinue  them  at  its  own  discretion.^*  Some- 
times Congress  has  delegated  authority  to  the  President  to  make 
agreements  with  foreign  nations  upon  subjects  within  its  powers, 
but  here,  also,  the  arrangement  seems  to  be  terminable  at  discre- 
tion of  Congress  and  is,  in  fact,  an  agreement  made  by  the  Pres- 
ident.^^ Congressional  resolutions  may  suggest  the  making  of  a 
treaty  on  a  specified  subject,  or  the  modification  by  negotiation  of  an 

10  S.  Dak.  V.  N.  Car.,  192  U.  S.  286  (1904). 

"  Supra,  sec.  136, 

12  Richardson,  Messages,  i :  195. 

^3  Supra,  sec.  149,  note  82. 

1*  Field  V.  Clark,  143  U.  S.  649;  Taft,  Our  Chief  Magistrate,  p.  iii. 

15  Supra,  sec.  61 ;   Moore,  Digest,  5 :   362. 


234     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

existing  treaty,  but  such  resolutions  may  be  ignored  by  the  Pres- 
ident.^® 

i6o.  The  Courts  cannot  Make  International  Agreements. 

The  courts,  also,  are  devoid  of  treaty-making  power :  ^^ 

"  This  court,"  said  Justice  Story,  "  does  not  possess  any  treaty-making 
power.  That  power  belongs,  by  the  Constitution,  to  another  department  of 
the  government ;  and  to  alter,  amend,  or  add  to  any  treaty,  by  inserting  any 
clause,  whether  small  or  great,  important  or  trivial,  would  be  on  our  part 
an  usurpation  of  power,  and  not  an  exercise  of  judicial  functions." 

Courts  must  construe  and  interpret  treaties  in  applying  them  to 
cases,  but  such  constructions  cannot  apply  to  political  question  or 
supply  omissions.^' 

A.  The  Power  to  Make  Executive  Agreements. 
i6i.  The  Obligation  of  Executive  Agreements. 

The  President  with  advice  and  consent  of  two-thirds  of  the 
Senate  may  make  any  agreement  whatever,  on  a  subject  suitable 
for  international  negotiation  and  not  violative  of  constitutional 
limitations.  This  treaty-making  power  is  not  limited  by  the  Pres- 
ident's independent  power  of  making  agreements,  but  the  latter  power 
unquestionably  exists.  With  respect  to  such  Presidential  agreements, 
the  questions  arise:    (i)    What   subject   matter  may  they  cover? 

18  Infra,  sec.  203.  Congress  has  undertaken  regulation  of  Indian  affairs 
formerly  vested  in  the  treaty-making  power.  "  During  the  first  eighty 
years  of  government  under  the  Constitution,  agreements  with  the  Indian 
Tribes  were  made  exclusively  by  the  President  and  the  Senate,  in  the 
exercise  of  the  treaty-making  power.  The  passage  of  the  act  of  1871  was 
strongly  opposed  by  certain  members  of  the  House  as  well  as  of  the  Senate, 
on  the  ground  that  it  involved  an  infringement  of  the  treaty-making  power 
vested  in  the  President  and  the  latter  body.  It  was  admitted  that  if  the 
President  should  undertake  to  make  a  treaty  with  the  Indians,  Congress 
could  not  interfere  with  his  so-doing,  by  and  with  the  advice  and  consent  of 
the  Senate,  but  it  was,  on  the  other  hand,  maintained  that  Congress  had  the 
power  to  declare  whether  the  tribes  were  independent  nations  for  the 
purposes  of  treaty-making,  and  to  render  its  declaration  efifective  by  refusing 
to  recognize  any  subsequent  treaties  with  them ;  and  this  view  prevailed. 
(See  especially,  Cong.  Globe,  41st  Cong.,  3d  Sess.,  1870-1871,  part  i,  pp. 
763-765;  part  3.  pp.  1821-1825.)  "     Moore,  Digest,  5:  220. 

^7  The  Amiable  Isabella,  6  Wheat,  i,  71-73. 

18  Ihid.,  and  supra,  sec.   107. 


INTERNATIONAL  AGREEMENTS.  235 

(2)  What  sort  of  an  obligation  do  they  impose?  No  general  answer 
can  be  given  to  the  latter  question.  An  executive  agreement  may 
impose  an  absolute  obligation  as  would  be  true  of  the  executive 
settlement  of  a  claim  oy  an  American  citizen  against  a  foreign  gov- 
ernment. After  the  President  has  agreed  to  a  settlement,  the 
claim  becomes  res  adjudicata  and  if  against  the  American  citizen, 
cannot  be  raised  by  a  subsequent  administration  against  the  foreign 
government.  If  injustice  has  been  done  the  American  citizen,  it 
is  a  moral  duty  of  the  United  States  itself  to  compensate  him.^* 
On  the  other  hand,  an  executive  agreement  may  impose  an  obliga- 
tion strictly  binding  only  the  President,  who  makes  it,  as  would 
be  true  of  an  exchange  of  notes  over  foreign  policy,  such  as  the 
Root-Takahira  agreement,  or  the  Lansing-Ishii  agreement. 

In  general,  the  President  can  bind  only  himself  and  his  succes- 
sors in  office  by  executive  agreements,  but  in  certain  cases,  executive 
agreements  may  impose  a  strong  moral  obligation  upon  the  treaty- 
making  power  and  Congress,  and  they  may  even  be  cognizable  in 
the  courts.  The  form  of  the  obligation  does  not  afifect  its  obligatory 
character.  Executive  agreements  may  be  by  exchange  of  notes, 
protocols,  cartels,  modi  vivendi,  etc.,  but  in  any  case  the  obligation 
depends  upon  the  subject  matter.^" 

162.  Administrative  Agreements  under  Authority  of  Act  vf 
Congress. 
To  discover  the  subjects  on  which  the  President  may  make 
international  agreements,  we  must  examine  his  constitutional  powers. 
For  this  purpose  we  may  distinguish  his  powers  as  (i)  head  of  the 
administration,  (2)  as  commander-in-chief,  (3)  as  the  represen- 
tative organ  in  international  relations.  The  President  is  Chief 
Executive  and  head  of  the  Federal  administration  with  power  to 
direct  and  remove  officials  and  the  duty  to  "  take  care  that  the 
laws  be  faithfully  executed."  But  the  exercise  of  these  powers, 
and  the  meeting  of  this  responsibility  is  dependent  upon  the  laws 
which  Congress  may  pass,  organizing  the  administration  and  defin- 

^9  Meade  v.  U.  S.,  9  Wall.  691;  Borchard,  op.  cit.,  p.  379;  Comegys  t. 
Vasse,  I  Pet.  193,  212. 

20  See  also  infra,  sec.  166. 


236     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

ing  the  powers  and  responsibilities  of  office.  In  this  capacity, 
therefore,  the  President  may  only  make  international  agreements, 
under  authority  expressly  delegated  to  him  by  Congress,  or  the  treaty 
power,  or  agreements  of  a  nature  which  he  can  carry  out  within 
the  scope  of  existing  legislation.  Congress  has  often  delegated 
power  to  the  President  to  make  agreements  within  the  scope  of  a 
policy  defined  by  statute,  on  such  subjects  as  postal  service,  patents, 
trademarks,  copyrights  and  commerce.^^  Such  agreements  appear 
to  be  dependent  for  their  effectiveness  upon  the  authorizing  legis- 
lation, and  are  terminable,  both  nationally  and  internationally,  at 
the  discretion  of  Congress. 

"  It  cannot  be  supposed,"  wrote  Secretary  of  State  Gresham,  "  that  it 
was  intended,  by  the  simple  exchange  of  notes  on  January  31,  i8gi,  to  bind 
our  governments,  as  by  a  treaty,  to  certain  duties  or  remissions  of  duty 
on  the  specified  articles,  beyond  the  time  when  the  Congress  of  the  United 
States  might,  in  the  exercise  of  its  constitutional  powers,  repeal  the  legisla- 
tion under  which  the  arrangement  was  concluded."  22 

While  in  effect,  however,  they  are  binding  on  the  courts,^'  and  the 
President,  through  his  control  of  the  administration,  can  usually 
see  that  they  are  observed. 

163.  Administrative  Agreements  under  Authority  of  Treaty. 

The  administrative  powers  of  the  President  permit  him  to  carry 
out  treaties,  which  are  the  supreme  law  of  the  land,  so  far  as 
Congress  has  supplied  him  with  the  necessary  administrative  ma- 
chinery and  supplies.  International  agreements  for  this  purpose, 
and  under  express  authority  of  treaty,  have  been  made  with  ref- 
erence to  the  definite  marking  and  mapping  of  boundaries.^* 
Under  authority  of  the  treaty  with  Cuba  (1903),  as  well  as  of 
congressional  legislation,  President  Roosevelt  acquired  a  lease  at 
Guantanamo,  Cuba,  for  a  naval  base.^^  The  first  Hague  Conven- 
tion of  1899  apparently  gave  the  President  power  to  conclude  com- 
proniis  for  submitting  cases  to  arbitration,  but  the  Senate  has  since 

21  Supra,  sec.  61 ;  Taft,  op.  cit.,  p.  135. 

22  Moore,  Digest,  5 :  362. 

23  Field  V.  Clark,  143  U.  S.  649. 
2*Crandall,  op.  cit.,  pp.  117-118. 
^^  Ihid.,  p.  139. 


INTERNATIONAL  AGREEMENTS.  237 

refused  to  consent  to  treaties  delegating  this  power  to  the  Pres- 
ident.2« 

164.  Independent  Administrative  Agreements. 

The  President,  as  head  of  the  administration,  may  also  make 
international  agreements,  without  express  authority  of  statute  or 
treaty,  though  it  would  seem  that  such  agreements  should  not  go 
beyond  his  own  powers  of  execution.  In  1850,  however.  President 
Fillmore  authorized  an  agreement,  whereby  Great  Britain  ceded 
Horseshoe  Reef,  near  the  outlet  of  Lake  Erie,  on  condition  that 
the  United  States  erect  a  lighthouse  thereon,  and  refrain  from 
fortifying  it.  The  execution  of  this  agreement  required  congres- 
sional appropriation  and  permanent  abstention  of  Congress  from 
authorizing  fortification  of  this  island.  It  would  seem  properly 
a  subject  for  treaty,  rather  than  executive  agreement,  but  Congress 
had  already  made  the  necessary  appropriation  in  1849.  This  was 
reenacted  in  1854.^'' 

In  1864,  President  Lincoln  agreed  to  extradite  Arguelles  to  Spain, 
though  no  treaty  required  such  action.  It  has  generally  been  held 
since,  that  he  exceeded  his  powers  in  thus  making  an  agreement  for 
extradition,  yet  on  September  23,  191 3,  the  President  entered  into 
an  agreement  with  Great  Britain  for  extradition  between  the  Philip- 
pine Islands  or  Guam  and  British  North  Borneo,  of  fugitives  for 
offenses  specified  in  existing  treaties.^* 

165.  Recent  Practice. 

Perhaps  the  most  remarkable  example  of  such  agreements  is 
that  made  by  President  Roosevelt  in  1905  for  administering  the 
customs  houses  of  San  Domingo : " 

"The  Constitution,"  writes  President  Roosevelt  in  his  Autobiography, 
"did  not  explicitly  give  me  power  to  bring  about  the  necessary  agreement 
with  Santo  Domingo.  But  the  Constitution  did  not  forbid  my  doing  what  I 
did.     I  put  the  agreement  into  effect,  and  I  continued  its  execution  for  two 

2«  Willoughby,  op.  cit.,  p.  473;  Crandall,  op.  cit.,  pp.  1 19-120,  supra, 
sec.  62. 

27Malloy,  treaties,  etc.,  p.  663,  9  Stat.  380,  627;  10  Stat.  343- 

28  Crandall,  op.  cit.,  p.  117;  Corwin,  The  President's  Control  of  Foreign 
Relations,  p.  125. 

29  Roosevelt,  Autobiography,  pp.  551-552. 


238     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

years  before  the  Senate  acted ;  and  I  would  have  continued  it  until  the  end  of 
my  term,  if  necessary,  without  any  action  by  Congress.  But  it  was  far 
preferable  that  there  should  be  action  by  Congress,  so  that  we  might  be  pro- 
ceeding under  a  treaty  which  was  the  law  of  the  land,  and  not  merely  by 
a  direction  of  the  Chief  Executive,  which  would  lapse  when  that  particular 
Executive  left  office.  I,  therefore,  did  my  best  to  get  the  Senate  to  ratify 
what  I  had  done.  There  was  a  good  deal  of  difficulty  about  it'.  Enough 
Republicans  were  absent  to  prevent  the  securing  of  a  two-thirds  vote  for 
the  treaty,  and  the  Senate  adjourned  without  any  action  at  all,  and  with 
the  feeling  of  entire  self-satisfaction  at  having  left  the  country  in  the  po- 
sition of  assuming  a  responsibility  and  then  failing  to  fulfill  it.  Apparently 
the  Senators  in  question  felt  that  in  some  way  they  had  upheld  their  dignity. 
All  that  they  had  really  done  was  to  shirk  their  duty.  Somebody  had  to 
do  that  duty,  so  accordingly  I  did  it.  I  went  ahead  and  administered  the 
proposed  treaty  anyhow,  considering  it  as  a  simple  agreement  on  the 
part  of  the  Executive  which  would  be  converted  into  a  treaty  whenever  the 
Senate  acted.  After  a  couple  of  years,  the  Senate  did  act,  having  previousl}' 
made  some  utterly  unimportant  changes,  which  I  ratified  and  persuaded 
Santo  Domingo  to  ratify." 

This  statement  indicates  that  agreements  of  considerable  political 
importance  may  be  made  by  the  President  and  that  they  cannot  be 
prevented  by  the  Senate,  when  the  President  controls  the  necessary 
means  of  execution.  It  is  to  be  noted,  however,  that  in  President 
Roosevelt's  opinion,  they  are  binding  only  on  the  President  that 
makes  them.  The  latter  limitation  often  does  not  apply  in  practice, 
though  presumably  the  foreign  government  would  have  no  ground 
for  objection  if  a  subsequent  President  discontinued  such  an  execu- 
tive agreement.  President  Taft  describes  the  executive  agreement 
made  by  him  as  Secretary  of  War,  under  authority  of  President 
Roosevelt,  for  defining  the  relative  jurisdictions  of  the  United  States 
and  Panama  in  the  cities  of  Colon  and  Panama  at  either  end  of 
the  Canal.«° 

"  The  plan  contained  a  great  many  diflferent  provisions.  I  had  no 
power  to  make  a  treaty  with  Panama,  but  I  did  have,  with  the  authority 
of  the  President,  the  right  to  make  rules  equivalent  to  law  in  the  Zone.  I 
therefore  issued  an  order  directing  the  carrying  out  of  the  plan  agreed  upon 
in  so  far  as  it  was  necessary  to  carry  it  out  on  our  side  of  the  line,  on 
conditions  that,  and  as  long  as,  the  regulations  to  be  made  by  Panama  were 
enforced  by  that  government.  This  was  approved  by  Secretary  Hay,  and  the 
President,  and  has  constituted  down  until  the  present  day,  I  believe,  the 
basis  upon  which  the  two  governments  are  carried  on  in  this  close  proximity. 


80  Taft,  o/>.  cit.,  p.  112. 


INTERNATIONAL  AGREEMENTS.  239 

It  was  attacked  vigorously  in  the  Senate  as  a  usurpation  of  the  treaty- 
making  power  of  the  Senate  and  I  was  summoned  before  a  committee  in 
the  Senate  to  justify  what  had  been  done.  There  was  a  great  deal  of 
eloquence  over  this  usurpation  of  the  Senate's  prerogative  by  Mr.  Morgan  and 
other  Senators,  but  the  modus  vivendi  continued  as  the  practical  agreement 
between  the  nations  for  certainly  more  than  seven  years,  and  my  impression  is 
that  it  is  still  in  force  in  most  of  its  provisions." 

A  similar  agreement  with  Panama  was  made  in  October,  1914,  for 
enforcing  the  neutraHty  of  the  Canal  during  the  European  war.'^ 

166.  The  Validity  of  Administrative  Agreements. 

Other  viodi  vivendi  made  by  the  President  have  related  to  fisher- 
ies and  boundary  lines,  pending  permanent  settlement  by  treaty  or 
arbitration.'^  With  reference  to  a  modus  vivendi  made  in  1859  for 
joint  occupation  of  the  Island  of  San  Juan,  pending  decision  of  the 
Fuca  sound  boundary  question,  the  court  said :  '^ 

"  The  power  to  make  and  enforce  such  a  temporary  convention  re- 
specting its  own  territory  is  a  necessary  incident  to  every  national  govern- 
ment, and  adheres  where  the  executive  power  is  vested.  Such  conventions 
are  not  treaties  within  the  meaning  of  the  Constitution,  and,  as  treaties  su- 
preme law  of  the  land,  conclusive  on  the  courts,  but  they  are  provisional  ar- 
rangements, rendered  necessary  by  national  differences  involving  the  faith  of 
the  nation  and  entitled  to  the  respect  of  the  courts.  They  are  not  a  casting 
of  the  national  will  into  the  firm  and  permanent  condition  of  law,  and  yet 
in  some  sort  they  are  for  the  occasion  an  expression  of  the  will  of  the 
people  through  their  political  organ,  touching  the  matters  affected;  and  to 
avoid  unhappy  collision  between  the  political  and  judicial  branches  of  the 
government,  both  which  are  in  theory  inseparably  all  one,  such  an  ex- 
pression to  a  reasonable  limit  should  be  followed  by  the  courts  and  not 
opposed,  though  extending  to  the  temporary  restraint  or  modification  of 
the  operation  of  existing  statutes.  Just  as  here,  we  think,  this  particular 
convention  respecting  San  Juan  should  be  allowed  to  modify  for  the  time 
being  the  operation  of  the  organic  act  of  this  Territory  (Washington)  so  far 
forth  as  to  exclude  to  the  extent  demanded  by  the  political  branch  of  the 
government  of  the  United  States,  in  the  interest  of  peace,  all  territorial 
interference  for  the  government  of  that  island." 

In  this  case  the  court  had  refused  to  take  jurisdiction  of  a  murder 
committed  on  the  island.  Thus  the  island  claimed  by  the  United 
States,  and  justly  so  according  to  the  final  arbitration,  was  removed 

31  Naval  War  College,  Inf.  Law.  Docs.,  1916,  p.  94. 

32Crandall,  op.  cit.,  p.  113. 

33  Watts  V.  U.  S.,  I  Wash.  Terr.  288,  294  (1870)  ;  Crandall,  op.  cit.,  p.  107. 


240     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

from  the  jurisdiction  of  the  territory  by  executive  agreement. 
Although  in  theory  only  temporary,  in  fact  the  arbitration  was  not 
held  until  1871  and  the  joint  occupation  continued  until  1873,  a 
period  of  fourteen  years. ^*  Even  longer,  however,  was  the  opera- 
tion of  the  North  Atlantic  fisheries  modus  vivendi  of  1885,  which 
practically  continued  until  the  arbitration  of  1909. 

After  considering  such  agreements  as  these.  Professor  Corwin 
gives  his  "  final  verdict "  that  "  the  President's  prerogative  in  the 
making  of  international  compacts  of  a  temporary  nature  and  not 
demanding  enforcement  by  the  courts,  is  one  that  is  likely  to  become 
larger  before  it  begins  to  shrink."  ^° 

167.  The  Power  to  Make  Military  Agreements. 

As  Commander-in-Chief,  the  President  undoubtedly  has  power 
to  make  Cartels  for  exchange  of  prisoners  of  war,  suspensions  of 
arms,  capitulations  and  armistices  with  the  enemy.  Such  agree- 
ments may  be  made  by  commanding  officers  in  the  field  if  of  a  local 
and  temporary  effect  such  as  a  suspension  of  arms,  but  if  of  a 
general  effect  such  as  an  armistice,  they  must  be  by  authority  of 
the  Commander-in-Chief.^*  Thus,  President  Lincoln  was  justified 
in  repudiating  the  armistice  made  by  General  Sherman  with  Gen- 
eral Johnston  in  1865  on  the  ground  that  a  general  armistice  was 
within  the  President's  power  alone  and  General  Sherman  had  ex- 
ceeded his  powers.'^  The  same  is  usually  true  of  licenses  to  trade. 
The  President  was  expressly  authorized  by  act  of  Congress  in  1861 
to  license  trade  with  the  enemy.  The  court  held  that  the  power 
was  his  alone  and  condemned  a  vessel  running  the  blockade  to  New 
Orleans  with  a  license  from  the  Collector  of  Customs  in  New  Or- 
leans authorized  by  General  Banks  and  approved  by  Rear  Admiral 
Farragut.'* 


'*  Moore,  Int.  Ar^bitrations,  p.  222. 
^'^  Corwin,  op.  cit.,  p.  112. 

3«Lieber's    Instructions,    Gen.    Ord.    100,    1863,   Art's.    135,    140;    Halleck, 
Int.  Law,  4th  ed.  (Baker),  2:  346-347. 
3^  Ibid.,  2 :  356,  supra,  sec.  26. 
"The  Sea  Lion,  5  Wall.  630  (1866);  Moore,  Digest,  7:  255. 


INTERNATIONAL  AGREEMENTS.  241 

i68.  Armistices  and  Preliminaries  of  Peace. 

But  if  it  is  difficult  to  draw  the  line  separating  the  power  of 
the  President  and  that  of  field  officers  and  admirals,  it  is  equally 
difficult  to  draw  the  line  between  the  power  of  the  President  as 
Commander-in-Chief  and  the  treaty-making  power.  An  armistice 
ending  hostilities  necessarily  contains  certain  preliminaries  of  peace. 
This  was  true  of  the  preliminaries  of  peace  with  Spain  of  August 
12,  1898,  and  the  preliminaries  of  peace  and  armistice  with  Ger- 
many of  November  5  and  11,  1918.  In  each,  the  general  condi- 
tions of  peace  were  outlined,  and  in  each  the  defeated  enemy  alleged 
that  the  conditions  on  which  it  had  agreed  to  end  hostilities  were 
not  carried  out  in  the  definitive  treaty.^*  But  though  a  defeated 
enemy  may  have  little  recourse  in  such  circumstances,  a  more  dif- 
ficult question  is  raised,  with  reference  to  the  obligation  of  the 
Senate  to  consent  to  the  ratification  of  a  treaty  in  accord  with 
the  terms  of  the  armistice.  Can  the  President  by  ratification  of 
an  armistice,  containing  political  terms  of  peace,  oblige  the  full 
treaty-power  to  ratify  the  same  terms  in  the  final  treaty?  This  issue 
was  raised  with  reference  to  Article  X  of  the  League  of  Nations 
Covenant,  which  though  included  in  the  President's  XlVth  point, 
and  formally  agreed  to  by  the  allies  and  Germany  in  the  exchange 
of  notes  of  November  5,  1918,  on  the  basis  of  which  the  armistice 
of  November  11  was  made,  was  rejected  by  the  Senate  when  it 
appeared  in  the  final  treaty.*"  Clearly  an  armistice  ought  not  to 
affect  the  political  terms  of  peace  beyond  the  minimum  necessary  to 
bring  hostilities  to  an  end.  Within  this  minimum,  however,  the 
President,  as  Commander-in-Chief,  is  competent  to  conclude  armi- 
stices, and  his  agreement  ought  to  be  observed  by  the  Senate  in 
consenting  to  the  definitive  peace  treaty.  In  the  protocol  of  1901 
ending  the  Boxer  uprising  in  China,  the  President  not  only  agreed 
to  a  termination  of  military  operations,  but  also  to  the  indemnity 
which  China  should  pay  and  other  conditions,  such  as  razing  forts, 
and  improving  watercourses  in  which  she  would  cooperate*^ 

'3  On   the    obligation    of   armistices    see   Moore,   7 :    3:^6,   supra,   sec.   30, 
note  54- 

*'>  Supra,  sec.  30;  Wright,  Minn.  Law  Rev.,  4:  35. 
*^  Crandall,  op.  cit.,  p.  104,  infra,  sec.  251. 


242     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

169.  Validity  of  Military  Agreements. 

The  President's  power  as  Commander-in-Chief  permits  him  to 
conclude  agreements  in  time  of  peace  as  well  as  war.  So  President 
Monroe  agreed  to  a  delimitation  of  armaments  on  the  Great  Lakes 
in  1817,  which,  however,  he  submitted  a  year  later  to  the  Senate, 
where  it  received  ratification  as  a  treaty.  A  series  of  agreements 
were  made  with  Mexico  between  1882  and  1896  for  the  mutual 
pursuit  of  border  Indians  and  the  President  has  often  authorized 
the  transit  of  foreign  troops  across  the  territory,  a  power  thus 
justified  by  the  Supreme  Court :  *^ 

"  While  no  act  of  Congress  authorizes  the  executive  department  to 
permit  the  introduction  of  foreign  troops,  the  power  to  give  such  permis- 
sion without  legislative  assent  was  probably  assumed  to  exist  from  the 
authority  of  the  President  as  Commander-in-Chief  of  the  military  and 
naval  forces  of  the  United  States." 

In  a  dissenting  opinion  in  this  case.  Justice  Gray  thought  that  for- 
eign troops  could  be  admitted  only  by  express  consent  of  the  nation 
which  "  must  rest  upon  express  treaty  or  statute."  "  It  is  not 
necessary,"  he  added,  "  to  consider  the  full  extent  of  the  power  of 
the  President  in  such  matters."  In  spite  of  this  dissent  the  power 
has  been  exercised  by  the  President  on  many  occasions  and  is  cog- 
nizable in  the  courts  because  it  brings  into  operation  the  accepted 
principle  of  international  law,  that  armed  troops  and  public  vessels 
of  foreign  powers,  within  the  territory  by  permission,  are  exempt 
from  jurisdiction.*^  An  anology  may  be  made  between  the  power 
of  the  President  as  Commander-in-Chief  to  permit  the  entry  of  for- 
eign military  forces,  and  his  power  as  the  representative  organ 
to  receive  foreign  diplomatic  officers.  In  both  cases,  the  Pres- 
ident's act  entitles  the  foreign  agency  to  exemprion  from  juris- 
diction." 

Most  military  agreements  have  been  temporary  in  duration  and 
of  a  character  to  be  fulfilled  by  the  President  in  the  exercise  of  his 
independent  power  as  Commander-in-Chief.  The  power  of  ad- 
mitting troops  may,  however,  require  cooperation  of  the  courts  and 


42  Tucker  ?•.  Alexandmff,  183  U.  S.  424,  435. 

•*3  The  Exchange  7:  McFaddon,  7  Cranch  116,  139. 

**  In  re  Baiz,  135  U.  S.  403. 


INTERNATIONAL  AGREEMENTS.  2i3 

the  power  to  make  armistices  and  preliminaries  of  peace  may  re- 
quire cooperation  of  the  treaty  power.  An  agreement  of  permanent 
character,  and  limiting  Congress  as  well  as  the  President  ought, 
doubtless,  to  be  by  treaty,  as  was  ultimately  decided  of  the  Great 
Lakes  disarmament  agreement  of  1817. 

170.  Power  to  Make  Diplomatic  Agreements. 

Because  of  his  power  to  "  receive  ambassadors  and  other  public 
ministers "  and  to  negotiate  treaties,  the  President  is  the  repre- 
sentative organ  of  the  government  and  the  sole  organ  of  foreign 
communication.  As  such  he  has  certain  powers  of  agreement  mak- 
ing. Thus  agreements,  usually  by  exchange  of  notes,  defining  ex- 
ecutive policy  have  often  been  concluded.  The  Hay  open  door 
policy  of  1899-1900,  the  Root-Takahira  and  Lansing-Ishii  agree- 
ments of  1908  and  1917,  defining  American  policy  in  the  Far  East, 
and  the  Gentlemen's  agreement  of  1907,  relating  to  Japanese  im- 
migration, are  of  this  character.  Such  agreements  are  in  strictness 
binding  only  on  the  President  under  whose  authority  they  are  made, 
but  if  not  repudiated  would  be  presumed  to  have  been  accepted  by  a 
succeeding  President.  Thus  Secretary  Lansing  in  publishing  the 
Lansing-Ishii  agreement  stated  that  it  was  a  reaffirmation  of  the 
"open  door"  policy.*'' 

Of  similar  character  are  agreements  to  conclude  treaties.  We 
have  referred  to  preliminaries  of  peace  made  under  the  President's 
power  as  Commander-in-Chief.  From  his  power  as  representative 
organ,  the  President  has  agreed  to  negotiate  treaties  on  specified 
subjects.  Thus  an  agreement  preliminary  to  the  treaty  submitting 
the  Behring  Sea  case  to  arbitration  and  agreements  for  negotiating 
canal  treaties  with  Costa  Rica  and  Nicaragua  have  been  made.*' 
Such  agreements  merely  require  that  treaty  negotiations  be  at- 
tempted. They  would  seem  to  impose  no  obligation  upon  the 
Senate  to  accept  the  treaty  or  at  most  an  extremely  attenuated  obli- 
gation. 


"League  of  Nations   (World  Peace  Foundation,  Boston),  I,  No.  8,  p. 
459. 

♦•Crandall,  op.  cif.,  p.  iii. 


244     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

171.  Diplomatic  Agreements  Settling  Controversies. 

The  most  frequent  types  of  agreement  made  under  the  Pres- 
ident's representative  powers  are  those  settHng  international  contro- 
versies. Unless  authorized  by  express  treaty  or  act  of  Congress  this 
power  is  confined  to  the  settlement  of  claims  by  American  citizens 
against  foreign  governments.  Such  settlement  of  individual  claims 
may  be  made  either  by  direct  negotiation,  or  by  submission  of  the 
case  to  a  conciliation  commission  or  to  arbitration.  J.  B.  Moore 
states  that  thirty-one  cases  have  been  settled  directly  by  formal 
executive  agreement,  and  twenty-seven  by  arbitration  based  on  ex- 
ecutive agreement.  In  nineteen  such  cases  formal  treaties  have 
been  made  for  submitting  the  case  to  arbitration.*^ 

The  settlement  of  foreign  claims  against  the  United  States  or  of 
national  claims  involving  territory,  maritime  jurisdiction,  bellig- 
erent and  neutral  rights,  etc.,  has  generally  been  by  treaty,  or  by 
arbitration  authorized  by  treaty.*®  In  a  few  cases  of  foreign 
pecuniary  claims,  the  President  through  the  Secretary  of  State 
has  agreed  to  urge  upon  Congress  the  justice  of  the  claim,  but  he 
has  never  assumed  to  bind  the  United  States  to  pay  such  a  claim 
without  a  treaty.*^  Should  he  do  so,  doubtless  the  foreign  gov- 
ernment would  be  entitled  to  hold  the  United  States  bound,  since 
in  reference  to  the  meeting  of  international  responsibilities,  the  rep- 
resentative organ  speaks  for  the  nation  under  international  law."* 

"  In  two  instances  claims  of  foreigners  against  the  United  States  were 
submitted  to  arbitral  tribunals  by  executive  agreement,  but  in  both  in- 
stances it  was  expressly  provided  that  any  awards  that  might  be  made 
should  be  a  claim,  not  against  the  United  States,  but  solely  against  the 
estates  of  certain  American  citizens,  whose  estates  were  to  be  adjusted  be- 
fore the  same  arbitral  tribunal."  ^^ 


*^  Moort,  Pol.  Sci.  Quar.,  20:  414. 

*8  Foster,  Yale  Law  Jl.,  11 :  77  (Dec,  1901)  ;  Moore,  Digest,  5:  211; 
Willoughby,  op.  cit.,  p.  469. 

"  See  attitude  of  the  Executive  in  Chinese  and  Italian  Lynching  cases, 
1890-1901,  Moore,  Digest,  6:  834,  842. 

"o  Supra,  sec.  34. 

^^  C.  C.  Hyde,  "  Agreements  of  the  United  States  other  than  Treaties," 
Greenbag,  17:  233,  cited  Willoughby,  op.  cit.,  p.  469. 


INTERNATIONAL  AGREEMENTS.  246 

172.   Validity  of  Diplomatic  Agreements. 

The  President  may  and  must  interpret  treaties  and  international 
law  in  applying  their  rules  and  principles  for  the  settlement  of 
claims  of  American  citizens  but  he  has  no  power  to  make  general 
interpretations  of  treaty,  or  of  international  law.  In  fact,  how- 
ever, his  decisions  establish  precedents,  which  his  successors  will 
find  it  difficult  to  avoid.  Thus  the  agreement  of  President  Mc- 
Kinley  to  accept  the  last  three  principles  of  the  Declaration  of  Paris, 
during  the  Spanish  war,  would  doubtless  go  far  toward  establishing 
these  principles  as  international  law  obligatory  upon  the  United 
States  in  future  wars.^-  The  President  has  no  authority  to  agree 
to  general  interpretations  or  reservations  to  treaties.  Such  docu- 
ments are  not  valid  unless  consented  to  by  the  Senate.^^  But  the 
precedents  established  by  presidential  interpretation  in  particular 
cases  may  amount  to  an  authoritative  interpretation.  Thus  the 
Spanish  Treaty  Claims  Commission  felt  justified  in  applying  Article 
VII  of  the  treaty  with  Spain  of  1795,  which  forbade  the  "embargo 
or  detention"  of  "vessels  or  effects"  of  subjects  or  citizens  of  the 
other  contracting  power,  to  detention  of  goods  on  land.  The 
negotiators  of  the  treaty  appear  to  have  intended  application  only 
to  property  at  sea.  No  question  was  raised  for  over  seventy  years, 
after  which  the  American  Secretary  of  State  consistently  maintained 
the  broad  interpretation.^* 

"  Whether  or  not,"  said  the  court,  "  the  clause  was  originally  intended 
to  embrace  real  estate  and  personal  property  on  land  as  well  as  vessels 
and  their  cargoes,  the  same  has  been  so  construed  by  the  United  States  and 
this  construction  has  been  concurred  in  by  Spain;  and  therefore  the  com- 
mission will  adhere  to  such  construction  in  making  its  decisions." 

"There  is,"  says  President  Taft,  "much  practical  framing  of  our 
foreign  policies  in  the  executive  conduct  of  our  foreign  relations."  ^^ 

52  Proclamations  and  Decrees  during  the  war  with  Spain,  p.  77. 

^^  Siipra,  sees.  27,  28. 

5*  General  Principles  adopted  April  28,  1903,  No.  10,  Special  Report, 
Wm.  E.  Fuller,  Washington,  1907,  p.  23;  Crandall,  op.  cit.,  p.  384.  Executive 
interpretation  of  the  Alaska  Purchase  treaty  was  followed  by  the  court 
in  determining  the  extent  of  jurisdiction  in  Behring  Sea  prior  to  the  arbitra- 
tion, and  in  general  the  court  follows  executive  interpretation  of  political 
questions   {supra,  sec.  107). 

"  Taft,  op.  cit.,  p.  113;  supra,  sec.  38. 


246     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

Though  in  theory  the  President's  independent  power  is  confined  to 
making  agreements  of  temporary  effect,  confined  to  particular  cases 
or  binding  the  Executive  alone,  yet  in  practice  and  by  the  operation 
of  precedents  he  may,  by  such  agreements,  bind  other  departments 
and  through  interpretations  of  treaties  and  international  law  bind 
the  state  as  a  whole. 

B.     The  Power  to  Make  Treaties. 

173.  The  Subject  Matter  of  Treaties. 

The  framers  of  the  American  Constitution  did  not  anticipate  or 
desire  the  conclusion  of  many  treaties.^^  For  this  reason  they  made 
the  process  of  treaty  conclusion  difficult,  requiring  that  the  President 
act  only  with  the  advice  and  consent  of  two-thirds  of  the  Senators 
present,^^  some  even  wishing  to  require  adhesion  of  the  House  of 
Representatives^^  or  two-thirds  majority  of  the  entire  Senate.^® 
This  hope,  however,  has  scarcely  been  realized.  With  a  total  of 
595  treaties  from  its  foundation  to  August,  1914,  the  United  States 


56  In  the  Federal  Convention,  Gouverneur  Morris  "  was  not  solicitous 
to  multiply  and  facilitate  treaties,"  and  Madison  "  observed  that  if  had  been 
too  easy  in  the  present  Congress  to  make  treaties,  although  nine  States  were 
required  for  that  purpose."  Farrand,  Records  of  the  Federal  Convention,  2: 
393.  548-  See  also  Jefferson,  Manual  of  Congressional  Practice,  sec.  52,  and 
letter  to  Madison,  March  23,  1815,  Moore,  Int.  Law  Digest,  5:  162,  310. 

57  Under  the  Articles  of  Confederation,  the  treaty-making  power  was 
vested  in  nine  States  in  Congress  (Art.  IX),  and  in  some  of  the  early 
drafts  of  the  Constitution  it  was  vested  in  Congress  (Farrand,  2:  143),  later 
in  the  Senate  (ibid.,  2:  169,  183),  and  the  President  was  finally  added  on 
the  argument  that  treaty-making  was  properly  an  executive  function  (ibid., 
2:  297),  and  that  a  national  agency  was  necessary  as  an  offset  to  the  special 
State  interest  of  the  Senate.     (Ibid.,  2:  392.) 

53  Pennsylvania  especially  desired  this.  G.  Morris,  of  that  State,  wanted 
to  add  "but  no  treaty  shall  be  binding  on  the  United  States  which  is  not 
ratified  by  a  law"  (Farrand,  2:  297,  392).  Later,  Wilson,  of  Pennsylvania, 
proposed  to  add  "  and  House  of  Representatives,"  saying  that  "  as  treaties 
are  to  have  the  operation  of  laws  they  ought  to  have  the  sanction  of  laws 
also."  On  vote,  Pennsylvania  alone  supported  the  motion.  (Ibid.,  2:  538.) 
This  is  the  vote  referred  to  by  Washington  in  his  celebrated  message  on 
the  Jay  Treaty  where  he  refused  to  recognize  the  claim  of  the  House  of 
Representatives  to  participate  in  treaty-making.  (Ibid.,  3:  371;  Annals  of 
Congress.  4th  Cong.,  ist  Sess.,  p.  761,  Richardson,  Messages,  i:   195.) 

5^  Farrand,  2 :  549. 


INTERNATIONAL  AGREEMENTS.  247 

has  averaged  more  than  four  a  year,  and  for  the  twentieth  century, 
fifteen  a  year,  or  a  treaty  ratified  every  three  weeks.®°  And  this, 
in  spite  of  the  frequent  differences  between  the  President  and  the 
Senate  often  resulting  in  the  failure  to  ratify .^^ 

These  treaties  have  been  on  a  very  wide  variety  of  subjects. 
The  United  States  has  ratified  treaties  politically  organizing  inter- 
national society.  Such  have  been  alliances,  as  that  with  France  in 
1778;  guarantees  of  territory  or  neutrality  as  in  the  French  treaty 
of  1778  (Art.  XI),  the  treaty  with  New  Granada  or  Colombia  of 
1846  (Art.  XXXV),  with  Panama  in  1903  (Art.  I),  and  with  Haiti 
in  1916  (Art.  XIV)  ;  limitations  of  the  power  to  declare  war  by  re- 
quiring delay  as  in  the  twenty  Bryan  treaties  of  1914  or  by  limiting 
the  objects  for  which  force  maybe  used  as  in  the  II  Hague  Conven- 
tion of  1907  ;  and  limitations  of  armament  as  in  the  Great  Lakes  agree- 
ment of  1817.  The  United  States  has  also  ratified  many  treaties 
administratively  organizing  international  society,  such  as  postal, 
telegraphic,  cable,  radio,  sanitary,  slave  trade,  fishery,  migratory 
bird  and  other  conventions.  It  has  become  a  party  to  treaties 
legally  organizing  international  society  through  the  definition  of 
principles  of  international  law  as  in  the  Geneva  and  Hague  Conven- 
tions, through  the  establishment  of  international  courts  and  arbitra- 
tion tribunals  and  through  the  agreement  to  submit  certain  types  of 
cases  to  arbitration.  Finally  there  have  been  treaties  of  annexation 
and  boundary,  treaties  settling  claims,  treaties  of  commerce  and  navi- 
gation, consular  and  extradition  conventions,  and  conventions  de- 
fining the  rights  of  aliens.^- 

No  treaty  has  ever  been  declared  unconstitutional.®^  Bv  prac- 
tice, by  the  terms  in  which  the  power  is  granted  in  the  Constitution, 

60  By  25-year  periods,  treaties  have  been  concluded  as  follows :  I778-I799. 
21;  1800-1824,  20;  1825-1849,  63:  1850-1874,  141;  1875-1899.  142;  1900-1914, 
208.  This  is  in  accord  with  the  official  enumeration  of  treaties  (excluding  In- 
dian treaties),  begun  by  the  Department  of  State  on  January  29,  1908,  with 
Treaty  Series,  No.  489.  (See  Check-list  of  U.  S.  Public  Documents,  191 1, 
p.  978.)  Including  the  protocols  and  modi  vivendi  printed  in  Malloy  and 
Charles'  Collections,  the  total  for  the  period  would  be  633. 

61  Infra,  sec.  177. 

62  See  Foster,  Practice  of  Diplomacy,  pp.  243-244. 

63  Corwin,  National  Supremacy,  p.  5;  Anderson,  Am,  Jl.  Int.  Law,  i: 
647;  Willoughby,  op.  cit,,  p.  493,  supra,  sec.  46, 


248     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

and  by  direct  statement  of  the  supreme  court,^*  we  may  be  certain 
that  the  power  extends  to  "  any  matter  which  is  properly  the  sub- 
ject of  negotiations  with  a  foreign  country,"  limited  only  by  express 
or  implied  constitutional  prohibitions  the  effect  of  which  is  in  the 
main  confined  to  the  means  through  which  the  purposes  of  the  treaty 
may  be  attained.®^ 

174.  The  Initiation  of  Treaties. 

Treaties  may  of  course  be  initiated  or  suggested  by  a  foreign 
power,  but  if  by  the  United  States,  the  initiative  has  ordinarily  been 
taken  by  the  President.  Congress  has  sometimes  suggested  nego- 
tiations by  joint  or  concurrent  resolutions  originating  in  the  House 
of  Representatives  as  well  as  the  Senate.  Thus  resolutions  of  1890, 
1897,  and  1910  suggested  the  negotiation  of  arbitration  treaties  and 
acts  of  1916  and  1921,  negotiations  for  general  disarmament.  A 
resolution  of  1904  suggested  the  negotiation  of  a  treaty  for  protecting 
the  Behring  Sea  seals  and  one  of  1909  the  protection  of  American 
citizens  in  Russia.  In  most  of  these  cases,  negotiations  were  at- 
tempted, not  always  with  success  (at  least  once,  success  was  frus- 
trated by  the  Senate  veto) ,  but  says  Crandall :  ^^ 

"Although  it  is  not  to  be  doubted  that  the  President'  will  always  give 
careful  consideration  to  the  views  of  Congress,  deliberately  expressed  as  to 
instituting  negotiations,  he  cannot  be  compelled  to  exercise  a  power  en- 
trusted to  him  under  the  Constitution  by  a  resolution  of  either  house  or 
of  both  houses  of  Congress." 

The  reason  was  pointed  out  in  a  report  of  the  Senate  foreign  rela- 
tions committee  in  181 5: 

"  Since  the  President  conducts  correspondence  with  foreign  nations,  he 
would  be  more  competent  to  determine  when,  how  and  upon  what  subjects 
negotiations  could  be  urged  with  the  greatest  prospect  of  success."  ^'' 


6*Geofroy  v.  Riggs,  133  U.  S.  258  (1890)  ;  Wright,  The  Constitutionality 
of  Treaties,  Am.  Jl.  Int.  Law,  13:  262. 

^^  Supra,  sees.  67-69. 

^8  Crandall,  op.  cit.,  p.  74. 

♦■'^  Compilation  of  Reports  of  the  Senate  Committee  on  Foreign  Relations, 
Sen.  Doc,  No.  231,  56th  Cong.,  2d  Sess.,  8;  22;  Crandall,  op.  cit.,  p.  75; 
Hayden,  op.  cit.,  p.  206,  infra,  sec.  203. 


INTERNATIONAL  AGREEMENTS.  249 

175.  The  Appointment  of  Negotiators. 

Before  181 5,  special  missions,  appointed  by  the  President  with 
advice  and  consent  of  the  Senate,  were  sent  to  conclude  the  most 
important  treaties,  although  a  number  of  less  important  missions, 
such  as  that  of  John  Paul  Jones  to  Algeria  in  1792,  were  commis- 
sioned by  the  President  alone.  Since  1815  "treaties  have,  with  few 
exceptions,  been  negotiated  through  the  Secretary  of  State,  the  regu- 
lar diplomatic  representatives  and  consular  officers,  or  special  agents, 
empowered  and  commissioned  to  negotiate  the  treaty  by  the  Pres- 
ident without  special  confirmation  for  this  purpose  by  the  Senate."  " 
Commissioners  to  the  Panama  Congress  of  1826,  to  negotiate  the 
treaty  of  Washington  with  Great  Britain  in  1871,  and  to  negotiate 
with  China  in  1880  appear  to  be  the  only  special  missions  consented 
to  by  the  Senate  since  the  war  of  1812.  Possibly  the  difficulty  which 
President  Madison  encountered  in  getting  the  Senate  to  consent  to 
the  appointments  of  commissioners  for  concluding  the  treaty  of 
Ghent  ending  that  war,  accounts  in  part  for  this  fact.  Over  four 
hundred  commissioners  and  agents  have  been  authorized  to  nego- 
tiate by  the  President  alone,  including  the  important  missions  ending 
the  Mexican,  Spanish  and  World  Wars,  and  the  missions  represent- 
ing the  United  States  at  the  two  Hague,  the  Algeciras,  the  Versailles 
and  the  limitation  of  armament  conferences.  The  Senate  objected 
to  this  practice  of  negotiating  through  presidential  agents  in  the  case 
of  the  Korean  treaty  of  1882,  but  in  1888  and  in  1893  the  Senate 
Foreign  Relations  Committee  recognized  the  legitimacy  of  the  prac- 
tice.«^ 

"The  President  of  the  United  States,"  said  Senator  Sherman,  Chairman 
of  the  Committee  in  1888,  "has  the  power  to  propose  treaties  subject  to 
ratification  by  the  Senate,  and  he  may  use  such  agencies  as  he  chooses  to 
employ,  except  that  he  cannot  take  any  money  from  the  treasury  to  pay  these 
agents  without  an  appropriation  by  law.  He  can  use  such  instruments  as  he 
pleases." 

176.  The  Negotiation  and  Signature  of  Treaties. 

Negotiation  and  signature  have  usually  been  under  authority  of 
the  President  alone.     He  has  usually  prepared  the  instructions  and 

^8  Crandall,  op.  cit.,  p.  76. 

^9  Cong.  Rec,  Aug.  7,  1888,  p.  7285.    See  also  infra,  sees.  239,  240. 


250     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

full  powers  of  the  negotiators.  Not  since  the  first  few  years  of  the 
Republic  have  these  been  submitted  to  the  Senate.  In  about  eighteen 
instances  the  advice  of  the  Senate  has  been  sought  by  the  President 
prior  to  signature  of  the  treaty  and  almost  half  of  these  cases  oc- 
curred in  the  administration  of  Washington,  prior  to  the  negotia- 
tion of  the  Jay  treaty  (1794)  which  established  the  precedent  of 
Presidential  independence  in  negotiation. '"  Only  once  was  advice 
sought  by  the  President  in  person  and  on  that  occasion,  a  few  months 
after  the  Constitution  went  into  operation.  President  Washington's 
experiences  were  such  that  an  eye  witness  described  his  departure 
from  the  Senate  chamber  as  "  with  sullen  dignity  "  and  "  a  discon- 
solate air."  '^^  On  the  few  occasions  since  this  experience  when 
Senate  advice  has  been  sought  before  signature,  it  has  been  by  mes- 
sage responded  to  by  Senate  resolution.  Thus  in  1830  President 
Jackson  sought  the  advice  of  the  Senate  on  an  Indian  treaty  prior 
to  signature,  but  in  doing  so  apologized  "  for  departing  from  a  long 
and  for  many  years  an  unbroken  usage  in  similar  cases,"  which  de- 
parture he  thought  justified  by  distinctive  considerations  applicable 
to  Indian  treaties.  In  only  ten  later  cases  has  such  prior  advice 
been  sought,  though  informal  conferences  with  individual  senators 
or  with  the  Senate  Foreign  Relations  Committee  have  been  more 
frequent.''^ 

"The  fact,"  said  Senator  Bacon  in  1906,  "that  he  (Washington)  con- 
ferred personally  with  the  Senate  as  to  the  propriety  of  making  treaties 
before  attempting  to  negotiate  them,  shows  what  he  understood  to  be  the 
intention  of  the  Convention — that  the  Senate  should  be  not  simply  the  body 
to  say  yes  or  no  to  the  President  when  he  proposed  a  treaty,  but'  that  the 
Senate  should  be  the  advisor  of  the  President  whether  he  should  attempt 
to  negotiate  a  treaty.  What  possible  doubt  can  there  be  under  such  cir- 
cumstances as  to  what  was  his  understanding  of  the  purpose  and  intention 
of  those  who  framed  the  Constitution?  And  what  possible  doubt  can 
there  be  that  his  understanding  was  correct?  ...  It  is  true  that  that  practice 


^0  Hayden,  op.  cit.,  p.  80. 

'''^  Maclay,  Sketches  of  Debates  in  the  First  Senate  of  the  United  States, 
G.  W.  Harris,  ed.,  p.  125.  See  also  Crandall,  op.  cit.,  67-68;  Hayden,  op.  cit., 
18-27,  and  infra,  sec.  260. 

^2  Senate  debate,  Feb.  6,  1906,  cited  supra,  sec.  76,  note  16.  See  also 
Richardson,  Messages,  2:  478.  See  also  Senator  Lodge,  Scrihners,  31: 
33,  Sen.  Doc.  104,  57th  Cong.,  1st  Sess.;  and  Crandall,  op.  cit.,  pp.  68-72,  75. 


INTERNATIONAL  AGREEMENTS.  251 

has  been  abandoned,  so  far  as  concerns  the  President  coming  in  person  to 
sit  in  a  chair  on  the  right  of  the  presiding  officer  to  confer  with  members  of 
the  Senate,  as  our  rules  still  provide  he  shall  do  should  he  come  here  per- 
sonally, showing  we  recognize  the  propriety  of  his  coming  and  his  right  to 
come.''^  But  nevertheless  during  my  official  term  it  has  been  the  practice  of 
Presidents  and  Secretaries  of  State  to  confer  with  Senators  as  to  the 
propriety  of  negotiating  or  attempting  to  negotiate  a  treaty. 

"  I  know  in  my  own  experience  that  it  was  the  frequent'  practice  of 
Secretary  Hay,  not  simply  after  a  proposed  treaty  had  been  negotiated,  but 
before  he  had  ever  conferred  with  the  representatives  of  the  foreign  power, 
to  seek  to  have  conferences  with  Senators  to  know  what  they  thought 
of  such  and  such  a  proposition;  and  if  the  subject-matter  was  a  proper 
matter  for  negotiation,  what  Senators  thought  as  to  certain  provisions; 
and  he  advised  with  them  as  t'o  what  provisions  should  be  incorporated. 

"  I  recollect  two  treaties  in  particular.  One  is  the  general  arbitration 
treaty.  I  do  not  know  whether  he  conferred  with  all  Senators,  but  I  think 
he  did.  I  think  he  conferred  with  every  Senator  in  this  Chamber,  either  in 
writing  or  in  person,  as  to  the  general  arbitration  treaty.  He  certainly  con- 
ferred with  me." 

Such  informal  conferences  clearly  lack  legal  significance.  They  do 
not  bind  the  Senate  in  any  way.'*  The  practice,  however,  indicates 
the  development  of  an  important  constitutional  understanding.'^^ 

On  some  occasions,  notably  for  concluding  the  Treaty  of  Paris 
ending  the  Spanish  war,  Senators  have  been  appointed  as  commis- 
sioners to  negotiate,  a  practice  deplored  by  Senator  Hoar  on  the 
grounds  that  it  prevents  an  independent  consideration  of  the  treat) 
by  the  Senate.^® 

Signature  of  treaties  has,  since  very  early  times,  been  under  the 
authority  of  the  President  alone.  On  several  occasions  the  Amer- 
ican negotiators  have  appended  reservations  to  their  signatures  of 
multilateral  treaties  such  as  the  Hague  Conventions." 


"  But  see  opinion  of  Senator  Lodge,  infra,  sec.  266,  note  35- 
T*  See  Senator  Spooner's  suggestion  following  Senator  Bacon's  remarks, 
and  Corwin,  op.  cit.,  p.   188,  footnote. 
"i^  Infra,  sec.  266,  par.  4. 

76  Cotig.  Rec,  57th  Cong.,  2d  Sess.,  p.  2695 ;  Senator  Hoar,  Autobiography, 
2:  50;  Crandall,  op.  cit.,  p.  78;  Corwin,  op.  cit.,  p.  66.  Senators  Lodge  and 
Underwood  were  appointed  delegates  to  the  conference  on  limitation  of 
armament,   1921. 

77  Crandall,  op.  cit.,  pp.  76,  93;  Scott,  ed..  Reports  of  the  Hague 
Conferences,  Introduction,  pp.  xxv  et  seq.;  A.  D.  White,  Autobiography,  2: 
339-341. 


252     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

177.  Consent  to  the  Ratification  of  Treaties. 

The  need  of  Senate  consent  to  treaties  is  absolute,  consequently 
the  Senate  may  reject  a  treaty  altogether,  though,  according  to  Jay, 
such  action  would  be  improper  if  it  had  consented  to  the  full  powers 
and  instructions  of  the  negotiators  and  these  instructions  had  been 
faithfully  observed.'^  But  with  the  present  practice  of  presidential 
negotiation  and  signature,  this  limitation  is  unimportant.  Of  about 
650  signed  treaties  the  Senate  has  refused  consent  to  ratification  of 
about  twenty.'^^  Among  the  more  important  treaties  thus  vetoed 
may  be  mentioned  commercial  and  reciprocity  treaties  with  Switzer- 
land, 1835;  with  the  German  Zollverein,  1844;  with  Great  Britain 
for  Canada  in  settlement  of  the  fisheries  question,  1888;  and  the 
Kasson  reciprocity  treaties  of  1899;  annexation  treaties  with  Texas, 
1844;  Hawaii,  1855;  San  Domingo,  1869;  and  Denmark  for  the 
Virgin  Islands,  1868;  arbitration  and  claims  treaties  including  the 
Johnson-Clarendon  treaty  for  settlement  of  the  Alabama  claims, 
1868;  and  the  Olney-Pauncefote  general  arbitration  treaty  with 
Great  Britain,  1897;  canal  treaties  with  Colombia,  1869  and  1870; 
the  Knox  financial  administration  treaties  with  Nicaragua  and  Hon- 
duras, 191 1  ;  and  the  Treaty  of  Versailles,  1920.  It  is  to  be  noticed 
that  in  most  of  these  cases,  the  end  sought  was  eventually  achieved, 
though  in  the  cases  of  annexation  of  Hawaii  and  the  Virgin  Islands, 
and  settlement  of  the  Canadian  fisheries  question,  not  until  many 
years  later.  This  practice  appears  to  conflict  with  the  assertion  of 
John  Quincy  Adams  as  Secretary  of  State,  that  the  King  of  Spain 
was  under  an  absolute  obligation  to  ratify  the  Florida  purchase 
treaty  of  1819  on  failure  of  which  the  United  States  would  be 
entitled  "  to  compel  the  performance  of  the  engagement  as  far  as 
compulsion  can  accomplish  it."  ^°     Other  Secretaries  of  State  have 


^8  Crandall,  of^.  cit.,  p.  79,  supra,  sec.  25. 

"^9  Crandall,  op.  cit.,  p.  82;  Moore,  Digest,  3:  26;  Latane,  U.  S.  and  Latin 
America,  N.  Y.,  1920,  p.  283;  Jones,  Caribbean  Interests  of  the  U.  S.,  N.  Y., 
1916,  pp.  170,  179.  For  resolution  rejecting  Treaty  of  Versailles,  see  Cong. 
Rec,  March  19,  1920,  59:  4916.  For  summary  of  Senate  Proceedings  on  this 
treaty  see  League  of  Nations  (World  Peace  Foundation),  vol.  3,  No.  4.  For 
Proceedings  in  cases  of  treaties  rejected  by  the  Senate  see  66th  Cong.,  ist 
Sess.,  Sen.  Doc.  No.  26,  pp.  80  et  seq. 

^°  Moore,  Digest,  5  :  189-190, 


INTERNATIONAL  AGREEMENTS.  253 

explained,  however,  that  the  United  States  is  under  no  similar  obli- 
gation to  ratify  negotiated  treaties,  because  the  other  party  is  pre- 
sumed to  understand  the  lack  of  identity  between  the  negotiating 
and  ratifying  authorities  under  our  Constitution,  even  when  the 
right  of  reservation  has  not,  as  it  has  in  most  cases,  been  expressly 
reserved  in  the  full  powers  of  the  negotiators.®^ 

The  Senate's  right  to  qualify  its  consent  to  ratification  by  reser- 
vations, amendments  and  interpretations  was  established  through  a 
reservation  to  the  Jay  treaty  of  1794,®^  has  been  exercised  in  about 
seventy  cases,®^  and  has  been  judicially  recognized." 

"  In  this  country  a  treaty  is  something  more  than  a  contract,  for  the 
Federal  Constitution  declares  it  to  be  the  law  of  the  land.  If  so,  before 
it  can  become  a  law,  the  Senate,  in  whom  rests  the  authority  to  ratify  or 
approve  it,  must  agree  to  it.  But  the  Senate  are  not  required  to  adopt 
or  reject  it  as  a  whole,  but  may  modify  or  amend  it." 

A  refusal  of  the  Senate  either  to  reject  or  consent  to  ratification  is 
of  questionable  propriety.  Senator  Sumner  of  Massachusetts,  as 
Chairman  of  the  Senate  Foreign  Relations  Committee,  succeeded  in 
keeping  the  treaty  for  cession  of  the  Virgin  Islands  by  Denmark, 
submitted  to  it  on  December  3,  1867,  pigeon-holed  for  over  two 
years,  when  it  was  finally  rejected.*" 

The  Senate  may  suggest  interpretations  or  pass  resolutions  not 
qualifying  its  consent  to  a  treaty,  as  it  did  in  the  case  of  the  Treaty 
of  Paris  ending  the  Spanish  war.  A  majority  of  the  Senate  passed 
a  resolution  favoring  the  ultimate  independence  of  the  Philippines 
but  the  court  held  that  such  resolutions  are  legally  of  no  effect. 


^^  Supra,  sec.  26;  Moore,  Digest,  5:  200;  Crandall,  op.  cit.,  p.  94. 

82  Hayden,  op.  cit.,  p.  75. 

83  Senator  Lodge,  lac.  cit.,  supra,  note  67;  Crandall,  op.  cit.,  pp.  79-8i ; 
Treaty  Reservations  by  Foreign  Powers  and  the  United  States,  Sen.  Doc.  72, 
67th  Cong.,  1st  Sess.,  1921 ;  David  Hunter  Miller,  Reservations  to  Treaties,  N. 
Y.,  1919;  Q.  Wrigh(t-,  Amendments  and  Reservations  to  the  Treaty,  Minn. 
L.  R.,  4:  14. 

8*  Haver  v.  Yaker,  9  Wall.  ^2.  See  also  Brown,  J.,  in  Fourteen  Diamond 
Rings  V.  U.  S.,  183  U.  S.  176  (1901)  ;  Willoughby,  op.  cit.,  p.  462. 

85  Moore,  Digest,  i :  610.  The  French  guarantee  treaty,  signed  at  the 
same  time  as  the  treaty  of  Versailles,  appears  to  have  been  reposing  in  the 
archives  of  the  Senate  Foreign  Relations  Committee  since  its  submission  to  the 
Senate  by  President  Wilson  in  1919. 


254     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

"  The  meaning  of  the  treaty,"  said  the  Supreme  Court,  "  cannot  be 
controlled  by  subsequent  explanations  of  some  of  those  who  may 
have  voted  to  ratify  it,"  ®® 

178.  The  Ratification  of  Treaties. 

The  final  act  of  ratification  belongs  to  the  President.®'^  He  may 
refuse  to  submit  a  treaty  to  the  Senate  altogether  as  he  has  done  in 
nine  instances ;  he  may  submit  it  with  recommendations  for  amend- 
ment as  he  has  done  in  eleven  cases ;  he  may  withdraw  it  from  the 
Senate  before  that  body  has  voted  on  it,  illustrated  by  ten  cases; 
and  he  may  refuse  to  ratify  a  treaty  consented  to  by  the  Senate 
with  or  without  reservations  as  he  has  done  in  fifteen  cases. ®^  Thus 
Presidents  Roosevelt  and  Taft  each  abandoned  arbitration  treaties 
when  it  appeared  that  the  Senate  was  prepared  to  insist  upon  es- 
sential alterations.^^  As  he  is  the  best  judge  of  the  advisability  of 
initiating  negotiations  on  a  given  subject,  so  he  is  the  best  judge 
of  the  probability  of  a  foreign  nation  accepting  reservations  or 
amendments.  Foreign  nations  sometimes  regard  it  as  a  discourtesy 
to  have  modifications  of  a  negotiated  treaty  presented  to  them  as 
an  ultimatum,  without  their  having  had  an  opportunity  to  discuss 
them.""  It  is  therefore  often  advisable  for  the  President  to  aban- 
don a  treaty  which  he  thinks  will  probably  be  unacceptable  to  the 
other  signatory. 

179.  The  Exchange  of  Ratifications. 

The  exchange  of  ratifications  is  performed  under  authority  of 
the  President  and  makes  the  treaty  internationally  binding."^  The 
other  party  to  the  treaty  may  refuse  to  accept  Senate  amendments 


8«  Fourteen  Diamond  Rings  v.  U.  S.,  183  U.  S.  176.  See  also  N.  Y. 
Indians  v.  U.  S.,  170  U.  S.  i  (1898);  Moore,  Digest,  5:  210;  Crandall, 
op.  cit.,  p.  88;  supra,  sec.  27. 

^■^  Shepherd  v.  Insurance  Co.,  40  Fed.  341,  347;  Willoughby,  op.  cit., 
p.  466;  Crandall,  op.  cit.,  pp.  81,  94,  97;  Taft,  op.  cit.,  p.  106;  Black,  Con- 
stitutional Law,  p.  124;  Foster,  op.  cit.,  p.  274;  Senator  Spooner  of  Wis., 
debate  referred  to  supra,  sec.  76,  note  16;  Moore,  Digest,  5:  202. 

^8  Crandall,  op.  cit.,  pp.  95,  99. 

^^  Ibid.,  p.  98;  Taft,  op.  cit.,  p.  106;  Charles,  Treaties,  etc.,  p.  380. 

»o  Willoughby,  op.  cit.,  p.  464,  and  supra,  sec.  26. 

^^  Crandall,  op.  cit.,  p.  93,  and  supra,  sec.  29. 


INTERNATIONAL  AGREEMENTS.  255 

or  reservations  in  which  case  the  treaty  fails.  Thus  Great  Britain 
rejected,  after  Senate  alteration,  a  boundary  settlement  treaty  in 
1803,  a  slave  trade  convention  in  1824  and  the  first  Hay-Pauncefote 
Canal  treaty  in  1900.^-  During  exchange  of  ratifications,  however, 
no  new  interpretations  or  reservations  should  be  made.  The  Presi- 
dent's representatives  exchanged  explanations  to  the  Mexican  peace 
treaty  of  1848  and  Clayton-Bulwer  canal  treaty  with  Great  Britain 
of  1850  on  exchange  of  ratifications,  but,  not  having  been  submitted 
to  the  Senate,  these  explanations  were  of  doubtful  validity.  Napo- 
leon reserved  on  the  treaty  of  1801,  at  exchange  of  ratifications,  but 
President  Jefferson  promptly  resubmitted  the  treaty  to  the  Senate 
which  consented  to  the  new  reservation.  This  has  been  the  usual 
practice.^^ 

180.  The  Proclamation  of  Treaties. 

After  ratifications  have  been  exchanged,  the  treaty  must  be  pro- 
claimed to  have  validity  as  the  law  of  the  land  and  this  act  is  in 
the  power  of  the  President  alone."*  As  an  international  obligation 
the  treaty  is  binding  from  exchange  of  ratifications  and  such  obliga- 
tion is  held  to  date  back  to  the  time  of  signature.®^  As  a  law  bind- 
ing individuals,  however,  the  rule  is  different :  ^^ 

"  As  the  individual  citizen,  on  whose  rights  of  property  it  operates,  has 
no  means  of  knowing  anything  of  it  while  before  the  Senate,  it  would  be 
wrong  in  principle  to  hold  him  bound  by  it,  as  the  law  of  the  land,  until  it 
was  ratified  and  proclaimed.  And  to  construe  the  law,  so  as  to  make  the 
ratification  of  the  treaty  relate  back  to  its  signing,  thereby  divesting  a 
title  already  vested,  would  be  manifestly  unjust,  and  cannot  be  sanctioned." 

Thus  a  secret  treaty  might  be  internationally  binding  in  the  United 
States  but  it  could  not  be  the  supreme  law  of  the  land.  We  must, 
therefore,  regard  proclamation  as  the  first  step  in  the  execution  of 
a  treaty  rather  than  the  last  step  in  its  making.  A  treaty  which 
is  not  self-executing  may  require  legislation  in  addition  to  procla- 


92  Moore,  Digest,  5:  199-200;  Hayden,  op.  cit.,  p.  145;  supra,  sec.  26. 

93  Crandall,  op.  cit.,  pp.  85-92 ;  and  supra,  sec.  27. 
9*Crandall,  op.  cit.,  pp.  94-95;  Moore,  Digest,  5:  210. 
95  Haver  7'.  Yaker,  9  Wall.  32,  supra,  sees.  15,  29. 

^^Ihid.     See  also  Rev.  Stat.,  sec.  210;  Comp.  Stat.,  sec.  308,  and  supra, 
sec.  15,  note  14. 


256     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

mation  to  be  executable.     The  power  to  perform  such  acts  has  been 
considered  elsewhere.*^ 

C     The  Power  to  Terminate  Treaties. 

181.  Change  in  Conditions. 

Certain  provisions  of  treaty  may  be  terminated  by  war.  The 
courts  have  power,  in  controversies  coming  before  them,  to  dis- 
tinguish, on  the  basis  of  international  law,  those  provisions  of 
treaty  thus  affected,  from  those  which  are  unafifected  or  merely 
suspended  during  the  war,  in  case  the  political  organs  of  the  gov- 
ernment have  made  no  decision. ^^  In  controversies  with  foreign 
governments,  the  President  may  recognize  these  distinctions.  Cer- 
tain provisions  may  become  obsolete  by  a  change  of  material  con- 
ditions, through  operation  of  the  implied  clause  "  rebus  sic  stan- 
tibus." It  belongs  to  the  President  as  the  representative  organ  to 
decide  when  treaty  provisions  are  thus  terminated.^" 

182.  Violation  of  Treaty  by  One  Party. 

Treaties  may  become  voidable  by  reason  of  violation  by  the 
other  party  and  question  has  been  raised  whether  the  power  to  de- 
clare such  a  treaty  void  rests  with  Congress  or  the  treaty-making 
power.""  Justice  Iredell  thought  the  power  belonged  to  Congress"^ 
and  on  July  7,  1798,  Congress  held  that  it  had  the  power  when  it 
declared  that : "' 

"  Whereas  the  treaties  concluded  between  the  United  States  and  France 
have  been  repeatedly  violated  on  the  part  of  the  French  government;  and 
the  just  claims  of  the  United  States  for  reparation  of  the  injuries  so  com- 
mitted have  been  refused,  and  their  attempts  to  negotiate  an  amicable  ad- 
justment of  all  complaints  between  the  two  nations  have  been  repelled  with 
indignity,  etc.,"  therefore,  "  Be  it  enacted  .  .  .  That  the  United  States  are 
of  right  freed  and  exonerated  from  the  stipulations  of  the  treaties  and  of  the 


"^  Supra,  chap,  x  and  sec.  137. 

'^  Society  for  the  Propagation  of  the  Gospel  v.  New  Haven,  8  Wheat. 
464,  494  (1823),  Moore,  Digest,  5:  372-386. 

*8  Moore,  Digest,  3:  190;  5:  335-341;  supra,  sec.  107,  note  63. 

100  Mr.  Madison  to  Mr.  Pendleton,  Jan.  2,   1791,  ibid.,  5 :  321. 

101  Ware  v.  Hylton,  3  Dall.  199,  261   (1796).     Infra,  sec.  187. 

i°2  I   Stat.,  578;  Moore,   Digest,  5:   356;   Richardson,  Messages,  7:   518. 


INTERNATIONAL  AGREEMENTS.  5^67 

consular  convention,  heretofore  concluded  between  the  United  States  and 
France ;  and  that  the  same  shall  not  henceforth  be  regarded  as  legally 
obligatory  on  the  Government  or  citizens  of  the  United  States." 

This  appears  to  be  the  only  case  of  the  kind.  The  courts  have 
repeatedly  held  that  until  the  political  departments  have  acted  they 
are  bound  to  apply  voidable  treaties.^°^ 

"  If  the  attitude  of  Italy  was,  as  contended,  a  violation  of  the  obligation 
of  the  treaty,  which  in  international  law  would  have  justified  the  United 
States  in  denouncing  the  treaty  as  no  longer  obligatory,  it  did  not  auto- 
matically have  that  effect.  If  the  United  States  elected  not  to  declare  its 
abrogation,  or  come  to  a  rupture,  the  treaty  would  remain  in  force.  It  was 
only  voidable,  not  void;  and  if  the  United  States  should  prefer,  it  might 
waive  any  breach  which  in  its  judgment  had  occurred  and  conform  to  its 
own  obligations  as  if  there  had  been  no  such  breach,  i  Kent's  Comm.,  p. 
175." 

183.  Conclusion  of  New  Treaty. 

Treaties  may  be  terminated  by  negotiation  of  a  new  treaty  by 
the  same  parties,  for  which  the  treaty  power  alone  is  competent. 
Thus  in  vetoing  the  Chinese  exclusion  act  of  1879  President  Hayes 
wrote :  "* 

"  The  bill  before  me  does  not  enjoin  upon  the  President  the  abrogation 
of  the  entire  Burlingame  treaty,  much  less  of  the  principal  treaty  of  which 
it  is  the  supplement.  As  the  power  of  modifying  an  existing  treaty,  whether 
by  adding  or  striking  out  provisions,  is  a  part  of  the  treaty-making  power 
under  the  Constitution,  its  exercise  is  not  competent  for  Congress,  nor 
would  the  assent  of  China  to  this  partial  abrogation  of  the  treaty  make  the 
action  of  Congress  in  thus  procuring  an  amendment  of  a  treaty  a  competent 
exercise  of  authority  under  the  Constitution." 

Provisions  of  an  earlier  treaty  will  of  course  be  superseded  by  con- 
flicting provisions  of  a  later  treaty  between  the  same  parties/"'  but 
in  order  to  terminate  the  earlier  treaty  as  a  whole  the  intention  so 
to  do  must  be  clearly  expressed,  as  was  indicated  by  the  controversy 
over  effect  of  the  proposed  Hay-Pauncefote  canal  treaty  of  1900 


103  Charlton  v.  Kelly,  229  U.  S.  447 ;  Ware  v.  Hylton,  3  Dall.  199,  261 
(1796)  ;  In  re  Thomas,  12  Blatch  370;  Terlinden  v.  Ames,  184  U.  S.  270, 
288  (1902);  Doe  V.  Braden,  16  How.  638;  Jones  v.  Walker,  2  Paine  688; 
Moore,  Digest,  5:  320;  Willoughby,  op.  cit.,  p.  1007,  supra,  sec.  107,  note  63. 

10*  Richardson,  Messages,  7:  SiQ- 

if^s  Gushing,  Aft.  Gen.,  6  Op.  291;  Wright,  Am.  Jl.  Int.  Law,  ii:  576; 
Moore,  Digest,  5:  363-4- 


258     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

and  the  actual  treaty  of  1901  upon  the  Clayton-Bulwer  treaty  of 
i850."« 

184.  Denunciation  by  Congress. 

Finally  a  treaty  may  be  terminated  by  denunciation,  according 
to  its  own  terms.  A  period  of  six  months'  to  a  year's  notice  is 
usually  required.  There  has  been  question  whether  notice  should 
be  given  by  Congress,  by  the  treaty-making  power  or  by  the  Presi- 
dent, and  examples  can  be  found  of  each  practice.  Congress  has 
frequently  passed  resolutions  of  denunciation  as  it  did  of  the  Brit- 
ish treaties  of  1827  in  1846;  of  1854  in  1866;  and  of  1871  in  1885 
as  to  certain  articles.  The  President  has  usually  carried  out  such 
resolutions,  but  in  1865,  even  though  he  had  signed  a  congressional 
resolution  which  "  adopted "  and  "  ratified "  his  notice  for  termi- 
nating the  Great  Lakes  disarmament  agreement  of  181 7,  President 
Lincoln  withdrew  the  notice  and  the  treaty  continued  efifective.^"^ 
President  Hayes  doubted  the  competence  of  Congress  to  direct  the 
President  to  negotiate  modifications  of  an  existing  treaty  and  pointed 
out  that  unless  a  treaty  expressly  provided  for  partial  denuncia- 
tion such  a  step  would  be  impossible.^"^ 

"  As  the  other  high  contracting  party  has  entered  into  no  treaty  obli- 
gations except  such  as  include  the  part  denounced,  the  denunciation  by  one 
party  of  the  part  necessarily  liberates  the  other  party  from  the  whole 
treaty." 

President  Wilson,  however,  conducted  negotiations  for  modifica- 
tion of  all  treaty  provisions  in  conflict  with  the  La  Follette  Sea- 
man's Act  of  March  191 5  as  directed  by  Section  16  of  that  Act.  He, 
however,  refused  to  act  under  the  like  direction  of  Article  34  of  the 
Jones  Merchant  Marine  Act  of  June  5,  1920.  It  would  seem,  there- 
fore, that  the  President  is  the  final  authority  to  denounce  a  treaty, 

i""  Moore,  Digest,  3:  212  et  scq.  Sir  Edward  Grey,  British  Sec.  of 
State  for  Foreign  Affairs,  to  British  Ambassador  Bryce,  Nov.  14,  1912,  Diplo- 
matic History  of  the  Panama  Canal,  63d  Cong.,  2d  Sess.,  Sen.  Doc.  474, 
pp.  85-86. 

107  Fifty-sixth  Cong.,  ist  Sess.,  House  Doc,  No.  471,  pp.  32-34;  Crandall, 
op.  cit.,  p.  462. 

1"^  Richardson,  Messages,  7:  519. 


INTERNATIONAL  AGREEMENTS.  259 

and  while  he  may  not  be  able  to  give  notice  without  consent  of  Con- 
gress or  other  authority,  he  cannot  be  compelled  to  act  by  Congress. 
This  would  be  in  accord  with  the  general  practice  of  presidential 
independence  in  conducting  foreign  relations."^ 

185.  Denunciation  by  the  Treaty-Making  Power. 

The  Senate  has  contended  that  consent  of  the  House  of  Repre- 
sentatives to  the  denunciation  of  a  treaty  is  not  necessary  and  the 
Danish  treaty  of  1826  was  denounced  by  the  President  with  con- 
sent of  the  Senate  alone.  This  method  was  questioned  by  Senator 
Sumner  on  the  ground  that  it  was  the  repeal  of  a  law  to  which 
Congress  must  assent,  but  was  sustained  by  the  Foreign  Relations 
Committee :  ^^° 

"  As  to  this  convention,  and  all  others  of  like  character,  the  com- 
mittee are  clear  in  the  opinion  that  it  is  competent  for  the  President  and 
Senate,  acting  together,  to  terminate  it  in  the  manner  prescribed  by  the 
nth  article  (of  the  treaty)  without  the  aid  or  intervention  of  legislation 
by  Congress,  and  that  when  so  terminated  it  is  at  an  end  to  every  extent, 
both  as  a  contract  betAveen  the  governments  and  as  a  law  of  the  land." 

186.  Denunciation  by  the  President. 

Finally  there  have  been  several  examples  of  denunciation  by  the 
President  alone.  President  Taft  tells  of  his  denunciation  of  the 
Russian  treaty  of  1832  in  191 1.  The  issue  had  arisen  over  Russian 
persecution  of  American  Jews :  ^^^ 

"  The  resolution  of  the  House  of  Representatives  was  drawn  in  lan- 
guage which  would  have  given  offense  to  Russia,  as  doubtless  its  framers 
intended  to  do.  With  the  responsibility  of  maintaining  as  friendly  relations 
as  possible  with  all  the  world,  it  seemed  to  me  that  if  the  treaty  had  to  be 
abrogated,  it  ought  to  be  done  as  politely  as  possible,  with  the  hope  of 
negotiating  a  new  treaty  less  subject  to  dispute,  and  giving  more  satisfactory 
results.  With  the  knowledge  that  the  resolution  was  sure  to  pass  the  Senate, 
I  took  the  step  of  annulling  the  treaty  myself  and  giving  a  year's  notice 
to  Russia  of  the  annulment  in  proper  and  courteous  expressions,  on  the 
ground  that  we  had  differed  so  radically  as  to  its  construction  and  the 
treaty   was    so    old    that    it    would   be   wiser    to    make    a   new    treaty   more 


los  See  infra,  sees.  174,  202,  203. 

110  Thirty-fourth  Cong.,  ist  Sess.,  Senate  Report,  No.  97,  reprinted  in 
Cong.  Rec,  Nov.  8,  1919,  58:  8605.  See  also  Message  of  Pres.  Pierce,  Dec. 
3,  185s,  Richardson,  Messages,  3 :  334 ;  Crandall,  op.  cit.,  p.  459. 

mTaft,   op.  cit.,  pp.   116-117. 


260     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

definite  and  satisfactory.  I  sent  notice  of  this  annulment  at  once  to  the 
Senate,  and  in  this  way  succeeded  in  having  the  Senate  substitute  a  resolu- 
tion approving  my  action  for  the  resolution  which  came  over  from  the 
House.  The  House  was  thus  induced  to  approve  my  action  and  the  inci- 
dent was  closed  for  the  time." 

The  Swiss  treaty  of  1850  appears  to  have  been  denounced  by  the 
President  alone  in  1899."^  Willoughby  approves  this  method  of 
denunciation,  but  thinks  "  in  important  cases  the  President  wuuld 
undoubtedly  seek  senatorial  approval  before  taking  action."  ^^^ 
Although  the  power  may  seem  sustainable  by  analogy  to  the  Presi- 
dent's power  of  removal  without  consent  of  the  Senate,  admitted 
since  the  first  Congress,  even  when  the  appointment  requires  such 
consent,  yet  it  has  seldom  been  practised  and  has  been  often 
doubted."*  It  would  appear  that  the  final  act  of  sending  notice  is 
at  the  President's  discretion  and  when  he  gives  notice  the  treaty  is 
terminated  under  international  law  but  he  ought  not  to  act  without 
consent  either  of  Congress  or  of  the  Senate,  except  in  extraordinary 
circumstances, 

187.  Legislative  Abrogation, 

A  treaty  may  be  abrogated  as  "  the  law  of  the  land  "  by  resolu- 
tion of  Congress  or  by  the  passage  of  conflicting  legislation.  It  is 
somewhat  difficult  to  locate  the  constitutional  power  for  such  legis- 
lation when  terminating  treaties  on  subjects  not  within  the  legis- 
lative competence  of  Congress.  Rawle  considers  it  "  an  incident  to 
the  right  of  declaring  war."  At  any  rate  it  has  been  sustained  in 
many  cases.^^^ 

"  It  must  be  conceded,"  said  the  Supreme  Court  in  the  Chinese  Ex- 
clusion Case,  "  that  the  act  of  1888  is  in  contravention  of  express  stipulations 
of  the  treaty  of  1868  and  of  the  supplemental  treaty  of  1880,  but  it  is  not  on 
that  account  invalid  or  to  be  restricted  in  its  enforcement.  The  treaties  were 
of  no  greater  obligation  than  the  act  of  Congress.  By  the  Constitution, 
laws  made  in  pursuance  thereof  and  treaties  made  under  the  authority  of 

^12  Crandall,  op.  cit.,  pp.  116-117. 

113  Willoughby,  op.  cit.,  p.   518. 

11*  See  remarks  of  Senator  Walsh,  of  Mont'.,  Cong.  Rec,  Nov.  8,  1919, 
58:  8608-8609. 

1^5  The  Chinese  Exclusion  Case,  130  U.  S.  581 ;  The  Cherokee  Tobacco 
Case,  II  Wall.  616;  The  Head  Money  Cases,  112  U.  S.  580;  Moore,  Digest, 
5:  356-370.    Rawle,  A  View  of  the  Constitution,  1825,  p.  61. 


INTERNATIONAL  AGREEMENTS.  261 

the  United  States  are  both  declared  to  be  the  supreme  law  of  the  land,  and 
no  paramount  authority  is  given  to  one  over  the  other.  ...  It  can  be  deemed 
only  the  equivalent  of  a  legislative  act,  to  be  repealed  or  modified  at  the 
pleasure  of  Congress.  In  either  case  the  last  expression  of  the  sovereign 
will  must  control.  .  .  .  The  question  whether  our  government  was  justified 
in  disregarding  its  engagements  with  another  nation  is  not  one  for  the  de- 
termination of  the  courts.  .  .  .  The  court  is  not  the  censor  of  the  morals 
of  the  other  departments  of  the  Government." 

However,  as  the  court  noticed,  such  legislation  does  not  affect  the 
international  obligation  of  the  treaty.  President  Arthur  in  veto- 
ing the  Chinese  exclusion  bill  of  1882  said :  ^^^ 

"A  nation  is  justified  in  repudiating  its  treaty  obligations  only  when 
they  are  in  conflict  with  great  paramount  interests.  Even  then  all  possible 
reasonable  means  for  modifying  or  changing  these  obligations  by  mutual 
agreement  should  be  exhausted  before  resorting  to  the  supreme  right  of 
refusal  to  comply  with  them." 

President  Hayes's  veto  of  a  similar  bill  in  1879  though  based  partly  on 
constitutional  grounds  referred  to  "  the  more  general  considerations 
of  interest  and  duty  which  sacredly  guard  the  faith  of  the  nation, 
in  whatever  form  of  obligation  it  may  have  been  given."  ^^^  To 
make  "  a  scrap  of  paper"  of  a  treaty  by  legislation  will  at  once  give 
basis  for  international  demands.  Thus  France  refused  to  recog- 
nize the  legitimacy  of  American  abrogation  of  her  treaties  in  179^ 
and  compensation  was  made  by  sacrifice  of  the  spoliation  claims  by 
the  treaty  of  1800.^^^  China  has  consistently  protested  against  the 
disregard  of  her  treaties  by  various  exclusion  acts.^" 

188.  Conclusion. 

We  conclude  that  the  power  of  making  international  agreements 
is  largely  vested  in  the  President.  The  states'  power  in  this  respect 
is  practically  nil.  Though  the  Senate  has  an  absolute  veto  on 
treaties,  and  Congress  may  suggest  the  opening  of  negotiations,  may 
authorize  executive  agreements  and  may  refuse  to  execute  treaties, 
yet  the  real  initiative,  the  negotiation  and  the  final  decision  to  ratify 

118  Richardson,  Messages,  8:  112. 

I''-''  Ibid.,  7:  520.  See  also  Message  of  Pres.  Harrison,  Dec,  1890,  in  re- 
ferring to  violation  of  Hawaiian  Reciprocity  Treaty  by  the  tariff  act,  Richard- 
son, 9:  no;  Moore,  Digest,  5:  368,  and  supra,  sec.  loi. 

"8  Moore,  Digest,  5:  357.  609-612. 

"9  See  references  to  U.  S.  Foreign  Relations,  Moore,  Digest,  4:  198,  202. 


262     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

are  all  at  the  discretion  of  the  President.  Furthermore,  many  agree- 
Tnents  of  a  temporary  or  purely  executive  or  military  character  may 
be  made  by  him  without  consulting  the  Senate  at  all. 

While  executive  agreements  usually  terminate  with  the  passing 
from  office  of  the  President  under  whose  authority  they  were  nego- 
tiated, or  the  repeal  of  the  statute  on  which  they  were  founded,  this 
would  not  be  true  of  agreements  transferring  a  lease  or  other  title 
to  territory  for  a  term  of  years  or  permanently.  Treaties  may  be 
terminated  as  municipal  law  by  legislative  abrogation  or  judicial 
recognition  of  their  obsolescence  under  principles  of  international 
law,  but  the  international  obligation  may  be  ended  only  by  operation 
of  international  law  recognized  by  the  President,  by  legislative  de- 
nunciation of  a  voidable  treaty,  or  by  denunciation  under  the  terms 
of  the  treaty  itself  by  the  President  acting  ordinarily  with  consent 
of  the  Senate  or  Congress. 


CHAPTER  XV. 

The  Power  to  Make  Political  Decisions  in  Foreign  Affairs, 

Recognition,  Annexation,   Citizenship  and  the 

Determination  of  Policy. 

189.  Distinction  Between  Domestic  and  Foreign  Affairs. 

The  meeting  of  international  responsibilities  and  the  making  of 
international  agreements  do  not  include  all  matters  which  have  to 
do  with  the  conduct  of  foreign  relations.  Many  decisions  which 
may  be  made  by  nations  without  the  consent  of  other  states  and 
practically  without  limitation  by  international  law  and  treaty,  affect 
foreign  nations  very  closely.  The  recognition  of  foreign  states  and 
governments,  the  declaration  of  war  and  the  proclamation  of  neu- 
trality are  examples  which  at  once  spring  to  the  mind.  This  field 
is,  however,  difificult  accurately  to  define.  There  is  hardly  a  law 
passed  by  even  a  state  legislature  which  may  not  affect  a  resident 
alien  and  so  under  conceivable  circumstances  become  a  subject  of 
international  discussion.  Such  matters,  however,  as  the  regulation 
of  foreign  commerce,  the  control  of  immigration,  the  raising  of 
armies,  the  development  of  a  navy  and  the  building  of  fortifications 
within  its  territory,  are  of  very 'direct  interest  to  foreign  nations. 
Yet,  except  so  far  as  regulated  by  treaties,  they  are  considered 
domestic  questions. 

Arbitration  treaties  have  often  excepted  questions  affecting  na- 
tional "  independence  "  from  compulsory  submission  and  the  League 
of  Nations  Covenant  (Art.  XV)  recognizes  that  disputes  between 
nations  may  "  arise  out  of  a  matter  which  by  international  law  is 
solely  within  the  domestic  jurisdiction  "  of  one  party,  and  in  such 
disputes  the  Council  of  the  League  is  incompetent  to  make  a  recom- 
mendation. The  United  States  Supreme  Court  has  similarly  recog- 
nized certain  questions  undoubtedly  interesting  to  foreign  nations 
as  within  the  "independence"  of  the  nation.^ 


iThe  Chinese  Exclusion  Case,  130  U.  S.  581  (1889). 

263 


264     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

"  That  the  government  of  the  United  States,  through  the  action  of  the 
legislative  department,  can  exclude  aliens  from  its  territory  is  a  proposition 
which  we  do  not  think  open  to  controversy.  Jurisdiction  over  its  own  terri- 
tory to  that  extent  is  an  incident  of  every  independent  nation.  It  is  a  part 
of  its  independence." 

Writers  on  international  law  have  usually  drawn  the  line  be- 
tween foreign  affairs  and  domestic  affairs  according  to  the  line  of 
territorial  jurisdiction.^ 

"  It  being  a  necessary  result  of  independence  that  the  will  of  the  state 
shall  be  exclusive  over  its  territory,  it  also  asserts  authority  as  a  general  rule 
over  all  persons  and  things,  and  decides  what  acts  shall  or  shall  not  be  done 
within  its  dominion.  It  consequently  exercises  jurisdiction  there,  not  only 
with  respect  to  the  members  of  its  own  community  and  their  property,  but 
with  respect  to  foreign  persons  and  property." 

Although  in  practice  states  are  internationally  responsible  for  many 
events  which  occur  or  acts  which  take  effect  entirely  within  their 
borders,^  yet  territorial  autonomy  is  generally  recognized  by  inter- 
national law  and  we  will  confine  attention  to  those  political  decisions 
directly  affecting  matters  beyond  national  boundaries. 

190.  State  Power  to  Make  Political  Decisions  in  Foreign  Affairs. 
The  states  have  been  deprived  of  almost  all  power  to  make  polit- 
ical decisions  in  foreign  affairs.  Their  war  power  is  confined  to  the 
maintenance  of  a  militia  for  domestic  use  or  to  ward  off  an  actual 
or  imminent  invasion. 

"  No  state,"  says  the  Constitution,  "  shall  grant  letters  of  marque  and 
reprisal,  ...  or  without  the  consent  of  Congress  keep  troops  or  ships  of  war 
in  time  of  peace  or  engage  in  war  unless  actually  invaded  or  in  such  imminent 
danger  as  will  not  admit  of  delay."  ^ 

They  have  no  powers  dependent  upon  war  and  treaty-making  such 
as  that  of  annexing  territory,  nor  upon  diplomatic  and  representative 
powers  such  as  those  of  recognizing  new  states  and  governments, 


2  Hall,  Int.  Law,  p.  49. 

5  Supra,  sec.  89. 

*U.  S.  Const.,  Art.  I,  sec.  10,  cl.  3. 


POLITICAL  DECISIONS  IN  FOREIGN  AFFAIRS.  265 

though  state  legislatures  have  sometimes  passed  resolutions  recom- 
mending national  action  in  these  matters." 

In  political  matters  even  indirectly  affecting  foreign  relations  the 
states  are  excluded.  They  cannot  lay  export  or  import  duties  ex- 
cept to  enforce  inspection  laws;  they  cannot  lay  tonnage  duties; 
regulate  immigration  or  foreign  commerce  except  necessary  local 
regulations  upon  which  Congress  has  not  acted,  nor  naturalize 
aliens.^  The  intention  of  the  Constitution  is  undoubtedly  to  render 
the  states  incompetent  to  make  political  decisions  which  affect  for- 
eign nations  in  more  than  the  most  remote  degree,  yet  state  laws 
have  occasionally  given  rise  to  international  controversy,  especially 
where  discrimination  against  resident  aliens  is  alleged.  The  San 
Francisco  ordinance  of  1906  segregating  Japanese  school  children 
and  the  California  laws  of  1913  and  1920  forbidding  landholding 
to  certain  classes  of  aliens  are  in  point.'^ 

"  Even  a  state  of  the  Union,"  said  a  Senate  report  of  1897,  "  although 
having  admittedly  no  power  whatever  in  foreign  relations,  may  take  action 
uncontrollable  by  the  Federal  Government,  and  which,  if  not  properly  a 
casus  belli,  might  nevertheless  as  a  practical  matter  afford  to  some  foreign 
nation  the  excuse  of  a  declaration  of  war.  We  may  instance  the  action  which 
might  have  been  taken  by  the  State  of  Wyoming  in  relation  to  the  Chinese 
massacres,  or  by  the  State  of  Louisiana  in  relation  to  the  Italian  lynchings, 
or  by  the  State  of  New  York  in  its  recent  controversy  with  German  insurance 
companies  with  relation  to  the  treatment  of  its  own  insurance  companies  by 
Germany."  * 

191.  National  Power  to  Make  Political  Decisions  in  Foreign  Affairs. 
The  national  government  is  given  by  the  Constitution  political 
powers,  not  only  directly  affecting  foreign  relations,  such  as  the  war 
power,  the  treaty-making  power,  and  the  power  to  send  and  receive 
diplomatic  officers ;  but  also  most  powers  which  might  indirectly 


6  In  1897  Nebraska  adopted  a  resolution  extending  to  Cuba  their  sym- 
pathy. Sen.  Doc.  82,  54th  Cong.,  2d  sess.  For  state  resolutions  favoring 
recognition  of  Ireland.  Armenia,  Jewish  State,  the  League  of  Nations,  etc., 
see  Cong.  Rec,  57:  3866;  58:  43,  48-51,  54,  6859;  59:  7510. 

^U.  S.  Const.,  art.  i,  sec.  10,  cl.  3.  The  Passenger  Cases,  7  How.  283; 
Coolcy  V.  Port  Wardens,  12  How.  299;  Chirac  v.  Chirac,  2  Wheat.  259. 

''Supra,  sec.  15,  note  10;  sec.  50,  note  83. 

'  Sen.  Doc.  No.  56,  S4th  Cong.,  2d  sess.,  p.  5. 


266     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

affect  them,  such  as  the  powers  to  regulate  foreign  commerce,  to 
levy  customs  duties,  and  to  naturalize  aliens.  So  extensive  are 
these  powers  that  the  court  has  construed  them  as  together  con- 
ferring upon  the  national  government  all  the  powers  in  foreign  rela- 
tions enjoyed  by  other  sovereign  nations.^ 

"The  United  States  are  a  sovereign  and  independent  nation,  and  are 
vested  by  the  Constitution  with  the  entire  control  of  international  relations, 
and  with  all  the  powers  of  government  necessary  to  maintain  that  control  and 
make  it  eflfective." 

How  are  these  powers  distributed  among  the  departments  of 

government  ? 

"  It  is  clear  all  through  the  Constitution,  and  has  never  been  disputed, 
that  the  intention  was  to  distribute  the  powers  of  the  Government  between 
its  three  branches,  subject  to  such  checks  as  the  veto  of  the  President  or 
advice  and  consent  of  the  Senate;  and  not  to  place  any  given  power  in  two 
or  all  three  branches  of  the  Government  concurrently. 

"  The  existence  of  the  same  power  for  the  same  purposes  in  both  the 
legislative  and  executive  branches  of  the  Government  might  lead  to  most  un- 
fortunate results.  For  instance,  if  the  legislative  and  executive  branches  both 
possessed  the  power  of  recognizing  the  independence  of  a  foreign  nation,  and 
one  branch  should  declare  it  independent  while  the  other  denied  its  inde- 
pendence, then,  since  they  are  coordinate,  how  could  the  problem  be  solved 
by  the  judicial  branch? 

"The  distinction  must  be  borne  in  mind  between  the  existence  of  a  con- 
stitutional power  and  the  existence  of  an  ability  to  effect  certain  results.  For 
instance.  Congress  alone  has  the  power  to  declare  war.  The  Executive,  how- 
ever, can  do  many  acts  which  would  constitute  a  casus  belli,  and  thus  indi- 
rectly result  in  war ;  but  this  does  not  imply  in  the  Executive  a  concurrent 
power  to  declare  war,  and  the  war  which  would  result  would  be  one  declared 
by  a  foreign  power.  It  is  possible  even  that  the  judiciary,  by  declaring  some 
act  of  Congress  at  an  inopportune  moment  to  be  unconstitutional  or  otherwise 
incapable  of  execution  according  to  its  intent,  or  by  some  decision  in  a  prize 
cause  or  otherwise,  could  give  rise  to  a  war  with  a  foreign  power,  yet  no  one 
would  claim  that  the  judiciary  had  the  power  to  declare  war."  ^<> 

Though  the  constitutional  fathers  doubtless  had  the  purpose  as- 
cribed to  them  in  this  Senate  report,  yet  it  is  by  no  means  true  that 
they  succeeded  in  keeping  the  powers  of  the  various  departments 
from  overlapping  in  the  field  of  foreign  affairs.     An  illustration  is 


»Fong  Yue  Ting  v.  U.  S.,  149  U.  S.  698  (1893).     Supra,  sees.  71-73- 
i°Sen.  Doc.  No.  56  (cited  supra,  note  7),  p.  4. 


POLITICAL  DECISIONS  IN  FOREIGN  AFFAIRS.  267 

furnished  by  the  power  to  regulate  the  landing  of  submarine  cables." 

"  I  am  of  the  opinion,"  wrote  the  Acting  Attorney  General  in  1898,  "  that 
the  President  has  the  power,  in  the  absence  of  legislative  enactment,  to  con- 
trol the  landing  of  foreign  submarine  cables."  But  "the  Executive  permis- 
sion to  land  a  cable  is,  of  course,  subject  to  subsequent  congressional  action." 

The  President  as  Chief  Executive,  Commander-in-Chief  and  the 
representative  organ,  seems  to  have  sufficient  power  to  make  all 
political  decisions  in  foreign  affairs  not  exclusively  vested  in 
Congress  or  the  treaty-making  power  and  not  conflicting  with  in- 
ternational law,  treaty  or  existing  act  of  Congress. 

Congress,  on  the  other  hand,  can  make  political  decisions  in  for- 
eign affairs  so  far  as  it  can  bring  them  under  its  express,  implied 
or  resultant  powers,  the  most  important  of  which  in  this  connection 
are  the  powers  to  declare  war,  to  annex  territory,  to  naturalize 
aliens,  to  regulate  commerce  and  means  of  conveyance  and  com- 
munication with  foreign  nations,  and  to  regulate  immigration  and 
exclude  or  expel  aliens.  When  Congress  has  validly  acted,  its  act 
binds  the  President  except  in  so  far  as  it  encroaches  upon  his  con- 
stitutional discretion  to  receive  and  commission  diplomatic  officers 
and  to  act  as  Commander-in-Chief. 

The  courts  have  no  power  to  make  political  decisions  whatever. 
Their  functions  are  purely  judicial  and  when  confronted  with  a 
political  question  they  accept  the  decision  of  the  political  depart- 
ments of  the  government.''-  It  results  that  judicial  precedents  are 
not  of  great  assistance  in  determining  the  constitutional  line  separat- 
ing the  powers  of  the  President  from  those  of  Congress  in  this 
field. 

It  must  be  added  that  the  distinction  between  "  constitutional 
power"  and  "ability  to  effect  certain  results"  is  one  often  dif- 
ficult to  draw  in  practice,  though  doubtless  valid  in  theory.  If,  for 
instance,  the  President  has  the  "  ability  to  effect  certain  results  " 
for  which  Congress  is  given  express  power,  through  the  exercise 
of  his  own  undoubted  constitutional  powers,  it  would  not  seem  far 


1^  Moore,  Digest,  2:  463;  infra,  sec.  219.     See  also  infra,  sees.  245-248. 
12  Supra,  sec.  107. 


268     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

from  the  truth  to  state  that  the  constitutional  powers  of  Congress 
and  the  President  overlap.  The  same  end  may  often  be  attained  by 
different  means. 


A.  The  Power  to  Recognise  Foreign  States,  Governments,  and 

Belligerency. 

ig2.  The  Power  of  Recognition. 

The  President  as  the  representative  organ  has  the  power  to  rec- 
ognize facts  in  international  relations.  He  has  recognized  foreign 
states  by  receiving  diplomatic  officers  or  granting  exequators  to 
consuls  from  them,  and  by  sending  diplomatic  officers  or  commis- 
sioners to  them.^^  He  has,  by  diplomatic  correspondence  through 
the  Department  of  State,  recognized  acquisitions  of  territory  and 
the  establishment  of  protectorates  by  existing  states.^*  Likewise, 
beginning  with  the  recognition  of  the  French  revolutionary  gov- 
ernment through  reception  of  Citizen  Genet  in  1793,  the  President 
has  recognized  new  governments  and  he  has  refused  to  recognize 
de  facto  governments,  thereby  contributing  to  their  ultimate  down- 
fall, as  was  the  case  with  the  Huerta  government  in  Mexico  and  the 
Tinoco  government  in  Costa  Rica.^°  The  President  has  recognized 
the  existence  of  foreign  war  through  proclamation  of  neutrality. 
Though  the  first  such  proclamation,  issued  in  1793  by  Washington, 
was  vigorously  attacked  by  Jefferson  and  Madison,  who  considered 
it  beyond  his  powers  and  contrary  to  the  French  alliance  treaty  of 
1778,  the  precedent  has  been  followed  in  all  subsequent  foreign 
wars,  both  international  and  civil.^^  The  President  has  also  held 
himself  competent  to  recognize  the  termination  of  foreign  wars  and 
the  consequent  termination  of  American  neutrality .^'^  He  has  rec- 
ognized the  existence  of  insurgency  and  domestic  violence  in  foreign 


i»  Moore,  Digest,  i:  74-119. 

1*  Williams  v.  SuflFoIk  Ins.  Co.,  13  Pet.  415. 

15  Moore,  Digest,  i:  164;  Moore,  Principles  of  Am.  Diplomacy,  213-225. 

16  Moore,  Digest,  i:  164;  Corwin,  op.  cit.,  pp.  7-28. 

1^  Mr.  Seward,  Sec.  of   State,  to  Mr.  Goni,   Spanish  Minister,  July  22, 
18^,  Moore,  Digest,  7:  337,  supra   sec.  213. 


POLITICAL  DECISIONS  IN  FOREIGN  AFFAIRS.  269 

countries  by  proclamation  and  by  diplomatic  correspondence  through 
the  Department  of  State,  and  the  courts  have  held  that  such  action 
creates  a  status  covered  by  special  principles  of  international  law. 
Thus  in  the  case  of  the  Three  Friends  the  court  distinguished  be- 
tween "  war  in  the  material  sense  "  and  "  war  in  the  legal  sense."^* 

"  Here,"  it  said,  "  the  political  department  has  not  recognized  the  existence 
of  a  de  facto  belligerent  power  engaged  in  hostility  with  Spain,  but  has  recog- 
nized the  existence  of  insurrectionary  warfare  prevailing  before,  at  the  time 
and  since  this  forfeiture  is  alleged  to  have  been  incurred." 

After  describing  two  presidential  proclamations  calling  attention 
to  "  serious  civil  disturbances "  and  "  insurrection "  in  Cuba,  the 
court  continues : 

"  We  are  thus  judicially  informed  of  the  existence  of  an  actual  conflict 
of  arms  in  resistance  of  the  authority  of  a  government  with  which  the 
United  States  are  on  terms  of  peace  and  amity,  although  acknowledgment  of 
the  insurgents  as  belligerents  by  the  political  department  has  not  taken  place." 

With  respect  to  the  President's  power  of  recognition,  two  ques- 
tions have  been  raised:     What  are  its  limits?  and,  Is  it  exclusive? 

193.  Limits  of  Recognition  Power. 

The  courts  have  taken  cognizance  of  the  President's  recognition 
of  states,  governments,  belligerency,  insurgency  and  foreign  ac- 
quisitions of  territory  on  numerous  occasions  and  they  have  never 
held  that  the  President  exceeded  his  powers."  It  is  clear,  how- 
ever, that  if  unlimited,  the  power  of  recognition  could  be  used  to 
usurp  the  power  to  declare  war.  Thus  recognition  of  a  foreign 
revolting  state,  if  premature,  would  furnish  a  casus  belli.  This 
possibilitv  was  envisaged  by  Secretary  of  State  Adams  when  occasion 
arose  for  recognizing  the  revolting  South  American  Republics  and 
he  stated:-'' 


"/fciU.  i:  242;  The  Three  Friends,  166  U.  S.  62,-66  (1897)- 

10  Ibid.,  1 :  247. 

20  Mr.  Adams,  Sec.  of  State,  to  the  President.  Aug.  24,  1818,  ibid.,  1 :  78. 
For  discussion  of  circumstances  justifying  recognition,  see  Dana,  Notes  to 
Wheaton,  Elements  of  International  Law,  pp.  35,  A^- 


270     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

"There  is  a  stage  in  such  contests  when  the  parties  struggling  for  inde- 
pendence have,  as  I  conceive,  a  right  to  demand  its  acknowledgment  by  neu- 
tral parties,  and  when  the  acknowledgment  may  be  granted  without  departure 
from  the  obligations  of  neutrality.  It  is  the  stage,  when  independence  is 
established  as  a  matter  of  fact  so  as  to  leave  the  chances  of  the  opposite 
party  to  recover  their  dominion  utterly  desperate.  The  neutral  nation  must, 
of  course,  judge  for  itself  when  this  period  has  arrived  ;  and  as  the  belligerent 
nation  has  the  same  right  to  judge  for  itself,  it  is  very  likely  to  judge  differ- 
ently from  the  neutral  and  to  make  it  a  cause  or  pretext  for  war,  as  Great 
Britain  did  expressly  against  France  in  our  Revolution,  and  substantially 
against  Holland." 

Secretary  Adams'  distinction  seems  to  indicate  the  limits  of  the 
President's  power.  He  may  recognize  a  fact.  To  do  so  is  not  a 
just  cause  of  war.  A  recognition  before  the  fact  is,  however,  inter- 
vention and  practically  war,  the  declaration  of  which  belongs  to 
Congress.  Thus  when  the  line  has  been  close,  as  in  the  recognitions 
of  the  South  American  Republics  and  Texas,  the  President  has  "in- 
voked the  judgment  and  cooperation  of  Congress "  before  recog- 
nition^^  and  where  "  recognition  "  would  clearly  be  premature,  the 
President  has  not  acted  at  all  but  has  turned  the  question  over  to 
Congress.  Thus  President  McKinley,  in  his  message  of  April 
II,  1898,  turned  over  the  "solemn  responsibilty "  of  the  Cuban 
question  to  Congress  with  a  recommendation   for  intervention.^^ 

194.  Excluswcness  of  President's  Recognition  Power. 

In  practice,  recognition  has  always  been  by  authority  of  the 
President,  though  in  a  few  cases  the  President  has  gained  the  ap- 
proval of  Congress  or  the  Senate  before  acting.^^ 

"  In  the  preceding  review,"  writes  Moore,  "  of  the  recognition,  respec- 
tively, of  new  states,  new  governments  and  belligerency,  there  has  been  made 
in  each  case  a  precise  statement  of  facts,  showing  how  and  by  whom  the 
recognition  was  accorded.  In  every  case,  as  it  appears,  of  a  new  government 
and  of  belligerency  the  question  of  recognition  was  determined  solely  by  the 
Executive.  In  the  case  of  the  Spanish-American  republics,  of  Texas,  of 
Hayti,  and  of  Liberia,  the  President  before  recognizing  the  new  state,  in- 
voked the  judgment  and  cooperation  of  Congress;  and  in  each  of  these  cases 
provision  was  made  for  the  appointment  of  a  minister,  which,  when  made  in 

21  Infra,  sec.  194. 

22  Richardson,  Messages,  10:  67. 
2*  Moore,  Digest,  i :  244. 


POLITICAL  DECISIONS  IN  FOREIGN  AFFAIRS.  271 

due  form,  constitutes,  as  has  been  seen,  according  to  the  rules  of  international 
law,  a  formal  recognition.  In  numerous  other  cases  the  recognition  was 
given  by  the  Executive  solely  on  his  own  responsibility." 

The  Congressional  Resolution  of  April  20,  1898,  which  asserted 
that  "  the  people  of  the  Island  of  Cuba  are  and  of  right  ought  to 
be  free  and  independent"  has  been  cited  as  an  exception  but  the 
resolution  went  on  to  "direct  and  empower"  the  President  to  use 
the  army,  navy  and  militia  to  "  carry  these  resolutions  into  effect." 
It  was  in  fact  and  was  understood  at  the  time  to  be  a  declaration 
of  intervention  and  not  a  recognition.^*  As  Senator  Morgan  of 
Alabama  said,  it  was  "not  a  historical  declaration  of  the  existing 
facts  or  situation,  but  it  is  a  high  political  decree,  ...  a  basis  of 
political  action."  " 

195.  Claim  of  Congress  to  Recognition  Power. 

On  several  occasions,  the  power  of  recognition  has  been  claimed 
for  Congress.  Thus  said  Henry  Clay  in  the  House  of  Represen- 
tatives : " 

"  There  are  three  modes  under  our  Constitution  in  which  a  nation  may 
be  recognized:  By  the  Executive  receiving  a  minister;  secondly,  by  its  send- 
ing one  thither;  and,  thirdly,  this  House  unquestionably  has  the  right  to 
recognize  in  the  exercise  of  the  constitutional  power  of  Congress  to  regulate 
foreign  commerce.  .  .  .  Suppose,  for  example,  we  passed  an  act  to  regulate 
trade  between  the  United  States  and  Buenos  Ayres ;  the  existence  of  the 
nation  would  be  thereby  recognized,  as  we  could  not  regulate  trade  with  a 
nation  which  does  not  exist." 

However,  Clay's  original  motion  which  provided  salary  for  a 
minister  to  the  "  independent  provinces  of  the  River  Plata  in  South 
America  "  was  withdrawn  and  even  his  substitute,  omitting  the  term 
"  independent  "  and  adding  that  the  salary  was  to  commence  "  when- 


2*  Richardson,  Messages,  10:  72.  See  also  Latane,  Am.  Jl.  Int.  Law,  12: 
899  (Oct.,  1918).  criticizing  statement  in  Corwin,  op.  cit.,  p.  80. 

25Con9.  Rcc.,  55th  Cong.,  2d  sess.,  Appdx.,  p.  290;  Corwin,  op.  cit.,  p.  81. 

26  Sen.  Doc.  56  (cited  supra,  note  8),  p.  32;  Corwin,  p.  76.  See  also 
notes  of  Secretaries  of  State  Buchanan  and  Clay,  Moore,  Digest,  i :  245-246. 


272     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

ever  the  President  shall  deem  it  expedient  to  send  a  minister  to 
the  said  United  Provinces,"  failed  to  pass.-'' 

On  this  occasion,  as  later,  the  better  opinion  held  that  the  power 
to  recognize  was  vested  exclusively  in  the  Executive.  Thus  John 
Quincy  Adams,  then  Secretary  of  State,  writes  of  a  meeting  of 
President  Monroe's  cabinet,  on  January  i,  1819.^^ 

"As  to  impeachment,  I  was  willing  to  take  my  share  of  risk  of  it  for 
this  measure  whenever  the  Executive  should  deem  it  proper.  And,  instead 
of  admitting  the  Senate  or  House  of  Representatives  to  any  share  in  the  act 
of  recognition,  I  would  expressly  avoid  that  form  of  doing  it  which  would 
require  the  concurrence  of  those  bodies.  It  was,  I  had  no  doubt,  by  our 
Constitution  an  act  of  the  Executive  authority.  General  Washington  had 
exercised  it  in  recognizing  the  French  Republic  by  the  reception  of  Genet. 
Mr.  Madison  had  exercised  it  by  declining  several  years  to  receive,  and  by 
finally  receiving  Mr.  Onis ;  and  in  this  instance  I  thought  the  Executive  ought 
carefully  to  preserve  entire  the  authority  given  him  by  the  Constitution,  and 
not  weaken  it  by  setting  the  precedent  of  making  either  House  or  Congress 
a  party  to  an  act  which  it  was  his  exclusive  right  and  duty  to  perform.  Mr. 
Crawford  said  .  .  .  that  there  was  a  difference  between  the  recognition  of  a 
change  of  government  in  a  nation  already  acknowledged  as  sovereign,  and 
the  recognition  of  a  new  nation  itself.  He  did  not,  however,  deny,  but  ad- 
mitted, that  the  recognition  was  strictly  within  the  powers  of  the  Executive 
alone,  and  I  did  not  press  the  discussion  further." 

The  same  position  has  been  taken  by  ATr.  Seward  and  other 
Secretaries  of  State,"^  by  the  Senate  on  several  occasions^"  and  by 
the  Supreme  Court.'^ 

"  The  Executive,"  said  the  latter,  "  having  recognized  the  existence  of  a 
state  of  war  between  Spain  and  her  South  American  colonies,  the  courts  of  the 
union  are  bound  to  consider  as  lawful  those  acts  which  war  authorized  and 
which  the  new  Governments  in  South  America  may  direct  against  their 
enemy." 


27  Moore,  Digest,  1 :  82.  A  later  resolution  passed  the  House  of  Repre- 
sentatives, ibid.,  1 :  84. 

28  Memoirs  of  J.  Q.  Adams,  4:  205-206;  Moore,  Digest,  i:  244. 

29  Mr.  Seward,  Sec.  of  State,  to  Mr.  Dayton,  Minister  to  France,  Apr.  7. 
1864,  Moore,  Digest,  i :  246. 

^'^  Memorandum  on  the  method  of  "  Recognition "  of  foreign  govern- 
ments and  foreign  states  by  the  Government  of  the  United  States,  1789-1897, 
Sen.  Doc.  No.  40,  54th  Cong.,  2d  sess. ;  memorandum  upon  the  power  to 
recognize  the  independence  of  a  new  foreign  state.  Sen.  Doc.  No.  56,  54th 
Cong.,  2d  sess. 

"^The  Divina  Pastora,  4  Wheat.  32;  Moore,  Digest,  i:  247. 


POLITICAL  DECISIONS  IN  FOREIGN  AFFAIRS.  273 

Although  the  President  may  seek  the  opinion  of  Congress  before 
recognition;  and  doubtless  should  do  so  if  the  state  or  government 
or  war  in  question  does  not  have  a  clear  de  facto  existence,  yet  the 
law  is  that  stated  by  the  Senate  Foreign  Relations  Committee  in 
1897 : " 

v 

"  The  executive  branch  is  the  sole  mouthpiece  of  the  nation  in  communi- 
cation with  foreign  sovereignties.  Foreign  nations  communicate  only  through 
their  respective  executive  departments.  Resolutions  of  their  legislative  de- 
partments upon  diplomatic  matters  have  no  status  in  international  law.  In 
the  department  of  international  law,  therefore,  properly  speaking,  a  congres- 
sional recognition  of  belligerency  or  independence  would  be  a  nullity." 

Finally  we  may  notice  a  practical  consideration  adverted  to  by 
Professor  Corwin  after  a  comprehensive  survey  of  the  subject. 
Concluding  that  "  recognition,  as  it  is  known  to  international  law, 
belongs  to  the  President  alone,  or  to  the  President  in  conjunction 
with  the  Senate  "  he  adds :  " 

"  Even  if  we  should  admit  that  Congress,  incidentally  to  discharging 
some  legislative  function  like  that  of  regulating  commerce,  might  in  some 
sense  'recognize'  a  new  state  or  government,  the  question  still  remains  how 
it  would  communicate  its  recognition,  having  the  power  neither  to  dispatch 
nor  to  receive  diplomatic  agents.  As  was  said  of  the  States  of  the  Confed- 
eration, Congress  is  as  to  other  governments  'both  deaf  and  dumb.'  Why, 
then,  claim  for  it  a  power  which  it  could  not  possibly  use  save  in  some 
roundabout  and  inconclusive  fashion?" 

B.  The  Power  to  Determine  National   Territory  and  Citizenship. 

196.  Judicial  Recognition  of  Territorial  Limits. 

International  law  recognizes  that  territory  may  be  acquired  by 
accretion  and  prescription;  discovery  and  occupation;  cession  and 
conquest.^*  The  courts  in  applying  international  law  recognize 
small  acquisitions  by  accretion  and  prescription.  Thus  mud  islands 
formed  at  the  mouths  of  rivers  and  gradual  changes  in  boundary 

82  Sen.  Doc.  56,  54th  Cong.,  2d  Sess.,  p.  22. 

•'  Corwin,  op.  cit.,  p.  82. 

»*  Wilson  and  Tucker,  International  Law,  7th  ed.,  p.  108. 


274     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

river  courses  have  been  recognized  as  extending  the  jurisdiction.^^ 
The  courts  have  held  general  acceptance  of  certain  marks  as  the 
boundary  for  a  long  space  of  time  will  establish  it,  even  though  such 
marks  are  ascertained  to  be  incorrect  by  later  surveys,^"  and  they  have 
also  recognized  bays  with  headlands  more  than  six  miles  apart,  such 
as  Chesapeake  and  Delaware  bays,  as  territorial  waters  from  long 
assertion  by  the  United  States  and  tacit  acceptance  by  other  powers 
of  that  status.^''  In  general,  however,  the  courts  regard  the  deter- 
mination of  boundaries  as  a  political  question.^^ 

197.  Recognition  of  Territorial  Limits  by  the  President. 

The  President  is  competent  to  recognize  the  acquisition  of  ter- 
ritory by  discovery  and  occupation.  Thus  shall  uninhabited  islands 
in  the  Pacific  have  been  taken  possession  of  by  naval  commanders.'* 
The  President  has  also  applied  the  Guano  Island  act  passed  by 
Congress  in  1856  and  as  therein  provided  has  registered  islands, 
discovered  and  worked  by  American  citizens,  as  within  American 
jurisdiction  and  protection.  In  Jones  v.  United  States  the  Su- 
preme Court  held  that  the  jurisdiction  of  the  United  States  was 
thus  legally  extended.*" 

198.  Power  to  Annex  Territory  by  Treaty  and  Executive  Agree- 
ment. 

Most  of  the  acquisitions  of  territory  have  been  by  cession,  though 
the  competence  of  the  treaty-making  power  was  at  first  ques- 
ts Cushmg,  Att.  Gen.,  8  Op.  175  (1856);  Ocean  City  Assoc,  v.  Shriver, 
46  Atl.  690  (N.  J.,  1900),  and  English  case,  The  Anna,  5  Rob.  373  (1805); 
Moore,  Digest,  i :  269-273,  747. 

36  As  to  interstate  boundaries,  R.  I.  v.  Mass.,  4  How.  591,  639  (1846); 
Ind.  V.  Ky.,  136  U.  S.  479  (1890)  ;  Va.  •:;.  Tenn.,  148  U.  S.  503  (1893)  ;  Moore, 
Digest,  I  :  295,  747. 

"The  Grange,  Randolph,  Att.  Gen.,  i  Op.  2,^;  Manchester  v.  Mass.,  I39 
U.  S.  240;  Moore,  Digest,  i  :  735-743;  The  Alleganean,  Alabama  Claims  Com- 
mission, 1885,  32  Albany  L.  J.  484;  Moore,  Int.  Arb.  4333>  4675;  Scott,  Cases 
on  Int.  Law,  p.  143. 

S8  Foster  v.  Neilson,  2  Pet.  253 ;  Moore,  Digest,  i  :  743-745,  supra,  sec.  107. 

39  For  acquisition  of  Midway  and  Wake  Islands,  see  Moore,  Digest,  i : 
555- 

*o  Jones  V.  U.  S.,  137  U.  S.  202  (1890)  ;  Moore,  Digest,  i  :  55'^58o. 


POLITICAL  DECISIONS  IN  FOREIGN  AFFAIRS.  275 

tioned.*'-  Louisiana,  Florida,  Oregon,  California  and  New  Mexico, 
the  Messila  Valley,  Tutuila  in  the  Samoan  group,  Porto  Rico,  the 
Philippines,  Guam,  and  the  Virgin  Islands  have  been  thus  acquired, 
as  has  the  permanent  lease  of  the  Panama  Canal  Zone,  and  of 
a  naval  base  on  the  Gulf  of  Fonseca.  Reef  Island  near  the  outlet 
of  Lake  Erie  and  a  lease  of  a  naval  base  at  Guantanamo,  Cuba,  were 
acquired  by  executive  agreement.^^ 

199.  Power  of  Congress  to  Annex  Territory. 

Texas  and  Hawaii  were  acquired  by  joint  resolution  of  Congress. 
Commentators  have  had  difficulty  in  locating  the  clause  on  which  the 
power  of  Congress  to  annex  territory  is  founded.  Chief  Justice 
Marshall  implied  the  power  to  annex  territory  from  the  powers  to 
make  treaties  and  to  declare  war,"  but  the  former  does  not  apply 
to  Congress  nor  the  latter  to  these  cases,  and  as  Willoughby  com- 
ments after  citing  the  cases:** 

"It  is  to  be  observed  that  in  none  of  these  cases  is  there  any  argument 
to  show  just  why,  and  in  what  manner,  the  acquiring  of  the  foreign  territory 
is  a  necessary  or  proper  means  by  which  war  may  be  carried  on,  or  treaties 
entered  into.  In  fact,  it  will  be  seen  that  the  acquiring  of  foreign  territory 
has  been  treated  as  a  result  incidental  to,  rather  than  as  a  means  for,  the 
carrying  on  of  war  and  the  conducting  of  foreign  relations." 

It  has  been  argued  that  the  power  to  annex  territory  is  implied  in 
the  powers  to  admit  new  states  to  the  Union.*^  That  clause  might 
apply  to  Texas  which  was  immediately  admitted  as  a  state  but  hardly 
to  Hawaii ;  and  Gouverneur  Morris  who  drafted  the  Constitution, 
replied  to  Livingston's  query,  "  whether  Congress  can  admit  as  a 
new  state  territory  which  did  not  belong  to  the  United  States  when 
the  Constitution  was  made  "  :  " 


<i  Willoughby,  op.  cit.,  pp.  328  et  seq.  See  also  Wright,  Columbia  Law 
Rev.,  20:  141,  note  100. 

<2  Moore,  Digest,  i :  433-554- 

"Am.  Ins.  Co.  v.  Canter,  i  Pet.  SH- 

**  Willoughby,  pp.  cit.,  p.  340. 

<5  55th  Cong.,  2d  sess.,  Sen.  Report,  No.  681 ;  Willoughby,  op.  cit.,  p.  346. 

*6  Morris,  Life  and  Writings  (Sparks),  3:  185,  192;  Willoughby,  op.  cit., 
p.  328. 


276     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

"  In  my  opinion  they  cannot.  I  always  thought,  when  we  should  acquire 
Canada  and  Louisiana,  it  would  be  proper  to  govern  them  as  provinces  and 
allow  them  no  voice  in  our  councils.  In  wording  the  third  section  of  the 
fourth  article,  I  went  as  far  as  circumstances  would  permit  to  establish  the 
exclusion.  Candor  obliges  me  to  add  my  belief  that  had  it  been  more  point- 
edly expressed,  a  strong  opposition  would  have  been  made." 

If  Congress  has  the  power  at  all,  as  it  doubtless  has,  it  has  it  as  a 
resultant  of  the  various  powers  connected  with  foreign  relations 
which  together  confer  all  sovereign  powers  necessary  for  national 
defense.*^ 

The  Supreme  Court  has  admitted  the  power  of  Congress  to 
acquire  territory  by  conquest  but  has  denied  such  power  to  the 
President :  *^ 

"The  genius  and  character  of  our  institutions  are  peaceful,  and  the 
power  to  declare  war  was  not  conferred  upon  Congress  for  the  purposes  of 
aggression  or  aggrandizement,  but  to  enable  the  general  government  to  vindi- 
cate by  arms,  if  it  should  become  necessary,  its  own  lights  and  the  rights  of 
its  citizens.  A  war,  therefore,  declared  by  Congress,  can  never  be  presumed 
to  be  waged  for  the  purpose  of  conquest  or  the  acquisition  of  territory;  nor 
does  the  law  declaring  the  war  imply  an  authority  to  the  President  to  enlarge 
the  limits  of  the  United  States  by  subjugating  the  enemy's  country.  The 
United  States,  it  is  true,  may  extend  its  boundaries  by  conquest  or  treaty,  and 
may  demand  the  cession  of  territory  as  the  condition  of  peace,  in  order  to 
indem.nify  its  citizens  for  the  injuries  they  have  suffered,  or  to  reimburse  the 
government  for  the  expenses  of  the  war.  But  this  can  only  be  done  by  the 
treaty-making  power  or  the  legislative  authority,  and  is  not  a  part  of  the 
power  conferred  upon  the  President  by  the  declaration  of  war." 

We  conclude  that  the  courts  in  applying  international  law  and 
the  President  in  the  exercise  of  his  diplomatic  powers  may  recognize 
minor  acquisitions  of  territory  by  operation  of  international  law, 
and  that  more  considerable  bodies  of  territory  may  be  acquired  by 
treaty  or  by  joint  resolution  of  Congress, 

200.  Power    of    Congress    to    Naturalize    Aliens    and    Establish 
Criteria  of  Citizenship. 
The  Constitution  provides  that  "  all  persons  born  or  naturalized 
in  the  United  States,  and  subject  to  the  jurisdiction  thereof,  are 

*''  Willoughby,  op.  cit.,  p.  340. 
*8  Fleming  v.  Page,  9  How.  603. . 


POLITICAL  DECISIONS  IN  FOREIGN  AFFAIRS.  277 

citizens  of  the  United  States."**  Congress  has  exclusive  power 
"to  establish  an  uniform  rule  of  naturalization,"^"  and  it  has  by 
implication  the  power  to  determine,  within  the  constitutional  pro- 
vision, who  are  natural  born  citizens.     Thus  it  has  provided  that : " 

"All  children  heretofore  born  or  hereafter  born  out  of  the  limits  and 
jurisdiction  of  the  United  States,  whose  fathers  were  or  may  be  at  the  time 
of  their  birth  citizens  thereof,  are  declared  to  be  citizens  of  the  United  States; 
but  the  rights  of  citizenship  shall  not  descend  to  children  whose  fathers  never 
resided  in  the  United  States." 

Congress  may  also  naturalize  persons  by  special  act,  as  it  has  many 
Indian  tribes"  and  the  Porto  Ricans." 

From  its  power  to  naturalize  is  deduced  the  power  to  determine 
criteria  of  expatriation.  An  act  of  1868  "  recognizes  the  natural 
and  inherent  right  of  expatriation  "  and  enacts  that :  ^* 

"  Any  declaration,  instruction,  opinion,  order,  or  decision  of  any  officers 
of  this  Government  which  denies,  restricts,  impairs,  or  questions  their  right 
of  expatriation  is  hereby  declared  inconsistent  with  the  fundamental  prin- 
ciples of  this  Government." 

Laws  have  also  stated  presumptions  of  expatriation  of  naturalized 
citizens,  such  as  two  years  residence  in  the  country  of  origin  or  five 
years  residence  in  other  foreign  country.'^ 

201.  Power  of  Executive  to  Recognize  Citicettship. 

Within  the  limits  of  these  laws,  the  Executive,  actually  the  De- 
partment of  State,  must  recognize  the  citizenship  or  alienage  of  per- 
sons, in  offering  protection  or  responding  to  claims  of  foreign  gov- 
ernments in  behalf  of  their  citizens.  The  Executive  may  make 
requirements  with  reference  to  passports  and  registration  at  con- 

«U.  S.  Constitution,  Amendment  XIV;  U.  S.  v.  Wong  Kim  Ark,  169 
U.  S.  649- 

^°  Ibid,  Art.  I,  sec.  8,  cl.  4;  Chirac  v.  Chirac,  2  Wheat.  259. 
01  Rev.  Stat.,  sec.  1993 ;  Comp.  Stat.,  3947. 

52  Rev.  Stat.,  sec.  2312,  Act  Feb.  8,  1887,  sec.  6,  24  Stat.  390,  as  amended 
in  1901  and  1906;  Comp.  Stat.,  sec.  3951. 

53  Act  March  2,  1917,  sec.  5,  39  Stat.  953 ;  Comp.  Stat.,  sec.  38o3bb. 
"Rev.  Stat,  sec.  1999;  Comp.  Stat.,  sec.  3955. 

55  Act  March  2,  1907,  sec.  2,  34  Stat.  1228. 


278     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

sulates  in  the  place  of  residence  and  the  evidence  necessary  to  prove 
citizenship.^"  Within  the  United  States  the  question  of  citizenship 
is  ordinarily  one  for  judicial  determination,  but  immigrants  claim- 
ing citizenship  may,  under  present  laws,  have  the  fact  of 
citizenship  decided  adversely  and  finally  by  administrative  officials 
vi^ithout  appeal  to  the  courts.  According  to  the  Ju  Toy  case 
these  laws  do  not  violate  constitutional  guarantees.^^ 

C.  Power  to  Determine  Foreign  Policy. 
202.  Congressional  Resolutions  on  Incidents  in  Foreign  Affairs. 

Declarations  of  foreign  policy  may  be  made  by  Congress  in  the 
form  of  joint  resolutions,  but  such  resolutions  are  not  binding  on 
the  President.  They  merely  indicate  a  sentiment  which  he  is  free 
to  follow  or  ignore.  Yet  they  are  often  couched  in  mandatory 
terms  and  in  defense  of  his  independence  the  President  has  fre- 
quently vetoed  them.  Thus  in  1877,  President  Grant  vetoed  two 
resolutions  extending  appreciation  to  Pretoria  and  Argentine  Re- 
public for  the  "  complimentary  terms  in  which  they  had  referred 
to  the  first  centennial  "  :  ^^ 

"  Sympathizing  as  I  do  in  the  spirit  of  courtesy  and  friendly  recognition 
which  has  prompted  the  passage  of  these  resolutions,  I  cannot  escape  the 
conviction  that  their  adoption  has  inadvertently  involved  the  exercise  of  a 
power  which  infringes  upon  the  constitutional  rights  of  the  Executive.  .  .  . 
The  Constitution  of  the  United  States,  following  the  established  usage  of 
nations,  has  indicated  the  President  as  the  agent  to  represent  the  national 
sovereignty  in  its  intercourse  with  foreign  powers,  and  to  receive  all  official 


ee  Borchard,  op.  cit.,  p.  488. 

"  U.  S.  V.  Ju  Toy,  198  U.  S.  253 ;  Willoughby,  op.  cit.,  p.  1290. 

"8  Richardson,  Messages,  7:  431.  See  also  Sen.  Rep.,  quoted  supra,  sec. 
191.  President  Harding  is  reported  to  have  opposed  Senator  Borah's  amend- 
ment to  the  naval  appropriation  bill  of  1921,  authorizing  a  conference  on  dis- 
armament with  Great  Britain  and  Japan,  on  the  ground  that  it  "might  embar- 
rass executive  action,  or  appear  to  carry  a  congressional  recommendation  on 
international  policies  within  the  jurisdiction  of  the  executive."  (Press  Re- 
port, May  3,  1921,  Cong.  Rec,  May  17,  27,  1921,  61:  1508,  1857.)  These  ob- 
jections were,  however,  later  withdrawn  (Letter  to  Representative  Mondell, 
June  25,  1921),  and  the  bill  with  the  amendment  was  approved  July  12,  1921, 
two  days  after  Presidenlt  Harding  had  announced  his  intention  to  call  a 
conference  on  limitation  of  armament. 


POLITICAL  DECISIONS  IN  FOREIGN  AFFAIRS.  279 

communications  from  them,  .  .  .  making  him,  in  the  language  of  one  of  the 
most  eminent  writers  on  constitutional  law,  '  the  constitutional  organ  of  com- 
munication with  foreign  states.'  If  Congress  can  direct  the  correspondence 
of  the  Secretary  of  State  with  foreign  governments,  a  case  very  different 
from  that  now  under  consideration  might  arise,  when  that  oflicer  might  be 
directed  to  present  to  the  same  foreign  government  entirely  different  and 
antagonistic  views  or  statements." 

Similar  objection  has  sometimes  been  raised  in  Congress  itself. 
Thus  Webster  said  of  an  item  in  the  appropriation  bill  for  the 
Panama  mission  of  1826,  which  attempted  to  attach  conditions:^" 

"He  would  recapitulate  only  his  objections  to  this  amendment.  It  was 
unprecedented,  nothing  of  the  kind  having  been  attempted  before.  It  was, 
in  his  opinion,  unconstitutional,  as  it  was  taking  the  proper  responsibility 
from  the  Executive  and  exercising,  ourselves,  a  power  which,  from  its  nature, 
belongs  to  the  Executive,  and  not  to  us.  It  was  prescribing,  by  the  House, 
the  instructions  for  a  Minister  abroad.  It  was  nugatory,  as  it  attached  con- 
ditions which  might  be  complied  with,  or  might  not.  And  lastly,  if  gentlemen 
thought  it  important  to  express  the  sense  of  the  House  on  these  subjects,  or 
any  of  them,  the  regular  and  customary  way  was  by  resolution.  At  present 
it  seemed  to  him  that  we  must  make  the  appropriation  without  conditions,  or 
refuse  it.  The  President  had  laid  the  case  before  us.  If  our  opinion  of  the 
character  of  the  meeting,  or  its  objects,  led  us  to  withhold  the  appropriation, 
we  had  the  power  to  do  so.  If  we  had  not  so  much  confidence  in  the  Execu- 
tive as  to  render  us  willing  to  trust  to  the  constitutional  exercise  of  the 
Executive  power,  we  have  power  to  refuse  the  money.  It  is  a  direct  question 
of  aye  or  no.  If  the  Ministers  to  be  sent  to  Panama  may  not  be  trusted  to 
act,  like  other  Ministers,  under  the  instructions  of  the  Executive,  they  ought 
not  to  go  at  all." 

203.  President  lYot  Bound  by  Congressional  Resolutions  on  Foreign 
Affairs. 
The  Executive  has  never  hesitated  to  ignore  resolutions  or  acts 


'9  Benton,  Abridgment  of  Debates  in  Congress,  9:  91.  Congressional 
resolutions  on  incidents  in  the  control  of  foreign  aflfairs  have  sometimes  been 
defeated  in  Congress  from  an  apprehension  that  they  might  be  unconstitu- 
tional encroachments  upon  the  President's  powers.  See  Clay's  resolution  of 
1818  for  recognition  of  United  Province  of  Rio  de  la  Plata  (Moore,  Digest, 
I  :  182)  ;  Benton's  resolution  of  1844  criticizing  President  Tyler's  treaty  for 
annexation  of  Texas  (Cong.  Globe,  13,  Appdx.,  474)  ;  Sumner's  resolufon  of 
1871  criticizing  President  Grant's  effort  to  annex  Santo  Domingo  (Cong. 
Globe,  42d  Cong.,  ist  sess.,  pt.  i,  p.  294)  ;  McLemore's  resolution  of  March, 
1916,  "to  warn  all  citizens  of  the  United  States  to  refrain  from  traveling  on 
armed  vessels"  (Co«(7. /?^c.,  1916,  pp.  3700-4). 


280     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

of  this  kind,  even  when  passed.     Thus  a  resolution  of  1864  declared, 
with  reference  to  the  Maximillian  Government  of  Mexico,  that: 

"  It  does  not  accord  with  the  policy  of  the  United  States  to  acknowledge 
a  monarchical  government,  erected  on  the  ruins  of  any  republican  government 
in  America,  under  the  auspices  of  any  European  power." 

Secretary  of  State  Seward  explained  to  the  minister  in  France: 

"  This  is  a  practical  and  purely  Executive  question,  and  the  decision  of 
its  constitutionality  belongs  not  to  the  House  of  Representatives  nor  even  to 
Congress,  but  to  the  President  of  the  United  States.  .  .  .  While  the  President 
receives  the  declaration  of  the  House  of  Representatives  with  the  profound 
respect  to  which  it  is  entitled,  as  an  exposition  of  its  sentiments  upon  a  grave 
and  important  subject,  he  directs  that  you  inform  the  Government  of  France 
that  he  does  not  at  the  present  contemplate  any  departure  from  the  policy 
which  this  Government  has  hitherto  pursued  in  regard  to  the  war  which  exists 
between  France  and  Mexico.  It  is  hardly  necessary  to  say  that  the  proceed- 
ing of  the  House  of  Representatives  was  adopted  upon  suggestions  arising 
within  itself,  and  that  the  French  Government  would  be  seasonably  apprised 
of  any  change  of  policy  upon  this  subject  which  the  President  might  at  any 
future  time  think  it  proper  to  adopt." 

Congress  promptly  resolved  upon  receipt  of  this  communication 
that: 

"  Congress  has  a  constitutional  right  to  an  authoritative  voice  in  declaring 
and  prescribing  the  foreign  policy  of  the  United  States,  as  well  in  the  recog- 
nition of  new  powers  as  in  other  matters,  and  it  is  the  constitutional  duty  of 
the  President  to  respect  that  policy,  not  less  in  diplomatic  negotiations  than 
in  the  use  of  the  national  forces  when  authorized  by  law ;  and  the  propriety 
of  any  declaration  of  foreign  policy  by  Congress  is  sufficiently  proved  by  the 
vote  which  pronounces  it;  and  such  proposition,  while  pending  and  undeter- 
mined, is  not  a  fit  topic  of  diplomatic  explanation  with  any  foreign  power." 

Mr.  Blaine  criticized  this  resolution  in  the  House: 

"  To  adopt  this  principle  is  to  start  out  with  a  new  theory  in  the  adminis- 
tration of  our  foreign  affairs,  and  I  think  the  House  has  justified  its  sense 
of  self-respect  and  its  just  appreciation  of  the  spheres  of  the  coordinate 
departments  of  government  by  promptly  laying  the  resolution  on  the  table." 

But  after  changing  the  term  "  President "  to  "  Executive  Depart- 
ment" the  House  passed  the  resolution,  which,  however,  failed  to 
come  to  a  vote  in  the  Senate.^" 


«oMcPherson,  History  of  the  Rebellion,  pp.  345^354;  Sen.  Doc.  No.  56 
(cited  supra,  note  30),  p.  47.    See  also  President  Wilson's  refusal  to  carry 


POLITICAL  DECISIONS  IN  FOREIGN  AFFAIRS.  281 

Though  congressional  resolutions  on  concrete  incidents  are  en- 
croachments upon  the  power  of  the  Executive  Department  and  are 
of  no  legal  effect,  yet  they  may  be  of  value  as  an  index  of  national 
sentiment. 

"They  have,"  says  Professor  Corwin,  "often  furnished  the  President 
valuable  guidance  in  the  shaping  of  his  foreign  policy  in  conformity  with 
publx  opinion.  Thus  the  resolutions  which  were  passed  by  the  Senate  and 
House  separately  in  the  second  session  of  the  Fifty-third  Congress,  warning 
the  President  against  the  employment  of  forces  to  restore  the  monarchy  of 
Hawaii,  probably  saved  the  administration  from  a  fatal  error.  Again,  the 
notorious  McLemore  resolution,  requesting  the  President  '  to  warn  all  citi- 
zens of  the  United  States  to  refrain  from  traveling  on  armed  merchant 
vessels,'  though  ill-judged  enough  as  to  content,  did  nevertheless  furnish  the 
administration  a  valuable  hint  as  to  the  state  of  the  public  mind,  and  one 
which  it  was  quick  to  take.  For  the  President,  even  in  the  exercise  of  his 
most  unquestioned  powers,  cannot  act  in  a  vacuum.  He  must  ultimately  have 
the  support  of  public  sentiment."  ^^ 

204.  Congressional  Declarations  of  General  Policy. 

Congressional  resolutions  on  foreign  relations  have  often  been 
of  a  more  general  cliaracter,  avoiding  reference  to  specific  incidents, 
though  doubtless  suggested  by  such  incidents.  Thus  a  Senate  reso- 
lution of  1858  asserted  that  American  vessels  on  the  high  seas  are 
not  subject  to  visit  and  search  in  time  of  peace,*^  a  law  of  1868 
asserted  the  right  of  expatriation  to  be  "a  natural  and  inherent 
right  of  all  people  "  ^^  and  resolutions  at  various  times  have  sug- 
gested the  negotiation  of  arbitration  treaties.**  A  section  of  the 
naval  appropriation  act  of  1916  declared  it  to  be :  *' 


out  provisions  of  the  Jones  Merchant  Marine  Act  of  June  5,  1920,  directing 
the  termination  of  certain  treaty  provisions,  and  President  Lincoln's  failure 
to  terminate  the  Great  Lakes  disarmament  agreement  of  1817  in  accord  with 
a  resolution  of  1865,  supra,  sees.  I74.  184. 

«i  Corwin,  op.  cit.,  p.  45. 

62  Moore,  Digest,  2 :  946. 

«3Rev.  Stat.,  sec.  1999;  Comp.  Stat.,  sec.  3955. 

«*See  A  League  of  Nations  (World  Peace  Foundation),  I,  No.  i   (Oct., 

1917). 

65  Act  Aug.  29,  1916,  39  Stat.  618;  Comp.  Stat.  7686b.  In  the  Spring  of 
1921  President  Harding  is  reported  to  have  opposed  the  Borah  amendment  on 
disarmament  {supra,  sec.  56).    In  his  message  to  Congress  of  April  12,  1921, 


282     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

"The  policy  of  the  United  States  to  adjust  and  settle  its  international 
disputes  through  mediation  or  arbitration,  to  the  end  that  war  may  be  hon- 
orably avoided.  It  looks  with  apprehension  and  disfavor  upon  a  general 
increase  of  armament  throughout  the  world,  but  it  realizes  that  no  single 
nation  can  disarm,  and  that  without  common  agreement  upon  the  subject 
every  considerable  power  must  maintain  a  relative  standing  in  military 
strength." 

Negotiation  of  reciprocal  agreements  with  Canada  on  the  use  of 
houndary  waters  has  also  been  suggested.®"  A  Senate  resolution 
of  1912,  though  suggested  by  the  Magdalena  Bay  incident,  was  ex- 
pressed as  a  general  policy  related  to  the  Monroe  Doctrine."^ 
Treaty  reservations  have  sometimes  offered  the  Senate  an  opportunity 
for  the  expression  of  general  policies.  The  Hague  Conventions  on 
the  Pacific  settlement  of  international  disputes  were  signed  with  a 
reservation :  "^ 

"  Nothing  contained  in  this  convention  shall  be  so  construed  as  to  require 
the  United  States  of  America  to  depart  from  its  traditional  policy  of  not 
intruding  upon,  interfering  with,  or  entangling  itself  in  the  political  questions 
of  policy  or  internal  administration  of  any  foreign  state;  nor  shall  anything 
contained  in  the  said  convention  be  construed  to  imply  a  relinquishment  of  the 
United  States  of  America  of  its  traditional  attitude  toward  purely  American 
questions." 

The  Senate  appended  a  similar  reservation  to  the  Algeciras  Conven- 
tion of  1906.*'^ 

205.  Power  of  President  to  Determine  Foreign  Policy. 

It  is  believed  that  resolutions  expressing  general  policies  or 
principles  on  most  subjects  connected  with  foreign  relations  may  be 


he  said  with  reference  to  the  proposed  peace  resolution:  "It  would  be  unwise 
to  undertake  to  make  a  statement  of  future  policy  with  respect  to  European 
aflFairs  in  such  a  declaration  of  a  state  of  peace  (with  Germany).  In  correct- 
ing the  failure  of  the  Executive,  in  negotiating  the  most  important  treaty  in 
the  history  of  the  nation,  to  recognize  the  constitutional  powers  of  the  Senate, 
we  would  go  to  the  other  extreme,  equally  objectionable,  if  Congress  should 
assume  the  functions  of  the  Executive.  {Cong.  Rec,  61 :  95.  See  also  re- 
marks of  Senator  Hitchcock,  April  29,  1921,  ibid.,  61  :  745.) 

^^  Act  June  13,  1902,  32  Stat.  373,  Comp.  Stat.  9984 ;  Act  June  29,  1906, 
34  Stat.  628,  Comp.  Stat.  9989d. 

^T  Cong.  Rec,  Aug.  2,  1912,  48:  10046,  A  League  of  Nations,  I,  No.  5, 
p.  298  (June,  1918)  ;  Hart,  The  Monroe  Doctrine,  p.  235. 

68  Malloy,  Treaties,  etc.,  pp.  2032,  2047. 

«» Ibid.,  p.  2183. 


POLITICAL  DECISIONS  IN  FOREIGN  AFFAIRS  2H3 

constitutionally  passed  by  Congress,""  and  may  furnish  useful  guides 
to  the  President.  Congressional  expressions  of  opinion  on  partic- 
ular issues,  however,  and  attempts  to  direct  the  President  thereon 
encroach  upon  the  executive  field  and  may  embarrass  the  President's 
action/^  In  practice  foreign  policy  has  developed  by  executive  prec- 
edent, practice  and  declaration.  The  farewell  address  of  Wash- 
ington and  the  IMonroe  Doctrine,  both  purely  executive  in  origin 
and  future  interpretation,  have  been  the  most  important  expressions 
of  foreign  policy.'-  In  recent  years,  however,  Congress  and  es- 
pecially the  Senate  have  tended  to  express  permanent  policies  more 
freely,  by  resolution.  Though  the  IMonroe  Doctrine  was  stated  in 
1823  and  on  several  occasions  efforts  were  made  to  gain  for  it  legis- 
lative endorsement,  the  first  statement  referring  to  it,  accepted  by 
either  House  of  Congress,  appears  to  be  the  reservation  to  the 
Hague  Convention  of  1899  accepted  by  the  Senate,  and  on  this 
occasion  the  doctrine  was  not  referred  to  by  name.'^ 

'^o  The  constitutional  authority  of  Congress  may  be  traced  to  the  power 
to  declare  war.  According  to  Rawle,  "  the  right  to  qualify,  alter  or  annul  a 
treaty  being  of  a  tendency  to  produce  war,  is  an  incident  to  the  right  of  de- 
claring war."  (Supra,  sec.  187.)  The  declaration  of  a  foreign  policy  doubt- 
less has  a  similar  tendency  toward  the  production  or  avoidance  of  war. 

"1  The  power  of  Congress  to  declare  general  foreign  policies  docs  not  con- 
fer a  power  to  direct  the  details  of  their  execution  any  more  than  the  power 
to  declare  war  confers  a  power  to  direct  the  details  of  military  campaigns 
(infra,  sec.  221),  or  the  power  to  make  laws  on  certain  subjects  confers  a 
power  to  direct  their  administration  (infra,  sec.  230).  The  first  would  en- 
croach upon  the  President's  power  to  receive  and  commission  diplomatic  offi- 
cers and  to  negotiate  treaties,  as  the  second  would  upon  his  power  as  com- 
mander-in-chief and  the  third  upon  his  power  as  chief  executive. 

"2  Richardson,  Messages,  i:  221-224;  2:  209,  218-219;  Moore,  Digest,  6: 
370,  401;  see  also  Taft,  op.  cit.,  p.  113;  Foster,  Century  of  Am.  Diplomacy,  p. 
438. 

'^  Supra,  note  6.  The  joint  resolution  of  Feb.  20,  1895,  endorsing  the 
suggestion  in  President  Cleveland's  annual  message  that  the  British-Vene- 
zuelan boundary  dispute  be  submitted  to  arbitration  (28  stat.  971)  and  the 
act  authorizing  and  appropriating  for  a  commission  to  investigate  this  dis- 
pute in  accordance  with  the  recommendation  of  his  special  message  of  Dec. 
17,  1895  (29  stat.  i),  are  considered  by  J.  W.  Foster  to  evidence  "  formal  ap- 
proval" of  the  Monroe  Doctrine  by  Congress  (op.  cit.,  p.  477).  These  Con- 
gressional acts  refer  to  a  particular  situation  rather  than  to  the  Monroe  Doc- 
trine as  a  whole  though  doubtless  they  implied  an  endorsement  of  that 
Doctrine  since  it  had  been  put  forth  as  the  grounds  for  action  in  President 
Qeveland's  messages. 


CHAPTER  XVI. 

The  Power  to  Make  Political  Decisions  in  Foreign  Affairs: 
War  and  the  Use  of  Force. 

A.  The  Power  to  Make  War. 

206.  The  Power  to  Make  War. 

Congress  is  given  power  "  to  declare  war,  grant  letters  of  marque 
and  reprisal  and  make  rules  concerning  captures  on  land  and  water," 
and  "to  provide  for  calling  forth  the  militia  to  execute  the  laws  of 
the  union,  suppress  insurrection  and  repel  invasions."  "  The  Pres- 
ident shall  be  commander-in-chief  of  the  army  and  navy  of  the 
United  States  and  of  the  militia  of  the  several  states,  when  called 
into  the  actual  service  of  the  United  States  "  and  "  he  shall  take 
care  that  the  laws  be  faithfully  executed."  ^ 

War  has  been  defined  as  "  the  relation  which  exists  between 
states  when  there  may  lawfully  be  a  properly  conducted  contest  of 
armed  public  forces."  ^  It  is  thus  to  be  distinguished  from  the  use 
of  military  force.  Battles  may  be  fought,  vessels  captured  and 
commerce  embargoed  without  war,  and  on  the  other  hand  war  may 
exist  without  a  gun  fired  or  a  vessel  captured  or  a  trade 
route  disturbed.  The  Supreme  Court  has  distinguished  the  recog- 
nition of  "  war  in  the  material  sense "  from  "  war  in  the  legal 
sense."  ^  We  may  thus  regard  war  as  a  definite  period  of  time 
within  which  the  abnormal  international  law  of  war  and  neutrality 
has  superseded  normal  international  law.  What  authority  in 
the  United  States  has  power  to  begin  and  end  this  period  of  time? 

207.  The  Causation  of  War. 

We  have  noticed  the  distinction  between  "  the  existence  of  a  con- 
stitutional power  and  the  existence  of  an  ability  to  eflfect  certain 

lU.  S.  Const.,  I,  sec.  8,  cl.  11,  15;  II,  sec.  2,  cl.  i,  sec.  3. 

2  Wilson  and  Tucker,  op.  cit.,  p.  233.  See  also  Grotius,  De  Jure  Belli 
ac  Pacis,  liv.  I,  c.  i,  par.  2;  Vattel,  Droit'  des  gens,  liv.  Ill,  c.  i,  sec.  i. 

3  The  Three  Friends,  166  U.  S.  I,  supra,  sec.  192,  and  Nelson,  J.,  dissent 
in  the  Prize  Cases,  2  Black  635,  690. 

284' 


WAR  AND  THE  USE  OF  FORCE.  285 

results."  *  Now  the  ultimate  causation  of  war  may  have  nothing 
to  do  with  the  war  powers  of  organs  of  the  government.  An  act 
of  a  state  legislature  discriminating  against  aliens  or  a  judicial 
decision  depriving  foreign  nations  of  rights  under  international 
law  may  be  a  casus  belli.  Yet  neither  states  nor  courts  have  any 
war  powers  at  all.  The  President  especially  is  endowed  with 
powers  which  in  their  exercise  may  lead  to  war. 

"The  President,"  says  Pomeroy,  "cannot  declare  war;  Congress  alone 
possesses  this  attribute.  But  the  President  may,  without  any  possibility  of 
hindrance  from  the  legislature,  so  conduct  the  foreign  intercourse,  the  diplo- 
matic negotiations  with  other  governments,  as  to  force  a  war,  as  to  compel 
another  nation  to  take  the  initiative ;  and  that  step  once  taken,  the  challenge 
cannot  be  refused.  How  easily  might  the  Executive  have  plunged  us  into 
a  war  with  Great  Britain  by  a  single  dispatch  in  answer  to  the  afifair  of  the 
Trent.  How  easily  might  he  have  provoked  a  condition  of  active  hostilities 
with  France  by  the  form  and  character  of  the  reclamations  made  in  regard 
to  the  occupation  of  Mexico."  ^ 

But  the  President's  powers  go  even  beyond  this.  As  Commander- 
in-Chief,  he  may  employ  the  armed  forces  in  defense  of  American 
citizens  abroad,  as  he  did  in  the  bombardment  of  Greytown,  the 
Koszta  case  and  the  Boxer  rebellion,  and  thereby  commit  acts  of 
war,  which  the  government  they  offend  may  consider  the  initiation 
of  a  state  of  war.  Thus  on  April  23,  1914,  after  the  occupation  of 
Vera  Cruz  by  American  marines,  the  Huerta  government  handed 
Charge  d'affaires  O'Shaughnessy  his  passports  with  the  comment :  ^ 

"  According  to  international  law,  the  acts  of  the  armed  forces  of  the 
United  States,  which  I  do  not  care  to  qualify  in  this  note  out  of  deference 
to  the  fact  that  your  honor  personally  has  observed  toward  the  Mexican 
people  and  Government  a  most  strictly  correct  conduct,  so  far  as  has  been 
possible  to  you  in  your  character  as  the  representative  of  a  government  with 
which  such  serious  difficulties  as  those  existing  have  arisen,  must  be 
considered  as  an  initiation  of  war  against  Mexico." 

Such  presidential  acts,  though  perhaps  a  casus  belli,  do  not  necessarily 
initiate  a  state  of  war,  as  the  intention  to  do  so  does  not  exist.''  If 
"war  results  it  is  one  recognized  or  declared  by  the  foreign  power, 
though  in  the  absence  of  a  treaty  requiring  a  formal  declaration  of 
war,  it  may  antedate  to  the  first  act  of  war. 

*  Supra,  sec.   191. 

"5  Pomeroy,  Constitutional  Law,  p.  65. 
«  Am.  Year  Book,  1914,  p.  235. 
7  Supra,  sec.  210,  note  20. 


286     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

208.  TJie  Recognition  of  War  by  Congress. 

Suppose  a  foreign  government  commits  such  acts  against  the 
United  States.  What  authority  can  recognize  them  as  in  fact  the 
initiation  of  war?  The  power  of  Congress  to  declare  war  unques- 
tionably embraces  the  power  to  recognize  war.  In  fact  all  of  the 
foreign  wars  to  which  the  United  States  has  been  a  party  have 
been  not  declarations  of  war,  but  recognitions  of  war,  if  we  are  to 
judge  by  the  terms  of  the  initiating  act  of  Congress.  Thus  on  June 
18,  1812,^  Congress  enacted  "  that  war  be  and  the  same  is  hereby 
declared  to  exist  between  the  United  Kingdom  of  Great  Britain  and 
Ireland  and  the  dependencies,  thereof,  and  the  United  States  of 
America  and  their  territories."     The  act  of  May  13,  1846,  recited:* 

"  Whereas,  by  the  act  of  the  Republic  of  Mexico,  a  state  of  war  exists 
between  that  Government  and  the  United  States :  Be  it  enacted  by  the 
Senate  and  the  House  of  Representatives  of  the  United  States  of  America 
in  Congress  assembled,  That,  for  the  purpose  of  enabHng  the  government  of 
the  United  States  to  prosecute  said  war  to  a  speedy  and  successful  termina- 
tion, the  President  be,  and  he  is  hereby,  authorized  to  employ  the  militia, 
naval  and  military  forces  of  the  United  States,  etc." 

War  resolutions  of  April  25,  1898,  April  6,  1917,  and  December  7, 
1917,  were  of  similar  character.^" 

209.  The  Recognition  of  War  by  the  President. 

But  does  the  President  also  have  power  to  recognize  war? 
President  Jefferson  thought  not  in  1801  but  was  not  deterred  from 
authorizing  defensive  measures.  Read  his  message  of  December  8, 
1801 : " 

"Tripoli,  the  least  considerable  of  the  Barbary  States,  had  come  for- 
ward with  demands  unfounded  either  in  right  or  in  compact,  and  had  per- 
mitted itself  to  denounce  war  on  our  failure  to  comply  before  a  given  day. 
The  style  of  tne  demand  admitted  but  one  answer.     I  sent  a  small  squadron 


82  Stat.  755.  A  declaration  that  war  "exists"  is  the  usual  form  in  all 
countries.  See  British  Proclamation  of  War,  August  4,  1914.  Naval  War 
College,  Int.  Law  Docs.,  1917,  p.  117,  and  other  declarations  in  that  volume. 
According  to  J.  B.  Moore,  "the  co-existence  of  the  two  phrases  may  be  as- 
cribed to  motives  of  political  strategy  rather  than  to  any  belief  or  supposition 
that  they  denoted  different  legal  conceptions."  Proc.  Am.  Phil.  Soc,  Min- 
utes, 60:  xvii. 

89  Stat.  9. 

^<'  Infra,  notes  18,  19. 

1^  Richardson,  Messages,  i :  326. 


WAR  AND  THE  USE  OF  FORCE.  287 

of  frigates  into  the  Mediterranean,  with  assurances  to  that  power  of  our 
sincere  desire  to  remain  in  peace,  but'  with  orders  to  protect  our  com- 
merce against  the  threatened  attack.  The  measure  was  seasonable  and 
salutary.  The  Bey  had  already  declared  war.  His  cruisers  were  out.  .  .  . 
One  of  the  Tripohtan  cruisers  having  fallen  in  with  and  engaged  the  small 
schooner  Enterprise,  commanded  by  Lieutenant  Sterret,  which  had  gone  as 
a  tender  to  our  larger  vessels,  was  captured,  after  a  heavy  slaughter  of  her 
men,  without  the  loss  of  a  single  one  on  our  part.  .  .  .  unauthorized  by  the 
Constitution,  without  the  sanction  of  Congress,  to  go  beyond  the  line  of 
Defense,  the  vessel,  being  disabled  from  committing  further  hostilities,  was 
liberated  with  its  crew.  The  legislature  will  doubtless  consider  whether,  by 
authorizing  measures  of  offense  also,  they  will  place  our  force  on  an  equal 
footing  with  that  of  our  adversaries." 

Congress  made  the  requisite  authorization  by  resolution  of  Febru- 
ary 6,  1802,^'  but  Hamilton,  as  "  Lucius  Crassus,"  could  not  restrain 
a  comment  on  the  message :  ^^ 

"  The  first  thing  in  it,  which  excites  our  surprise,  is  the  very  extra- 
ordinary position,  that  though  Tripoli  had  declared  war  in  form  against  the 
United  States,  and  had  enforced  it  by  actual  hostility,  yet  that  there  was  not 
power,  for  want  of  the  sanction  of  Congress,  to  capture  and  detain  her 
crews.  .  .  .  When  analyzed  it  amounts  to  nothing  less  than  this,  that 
between  two  nations  there  may  exist  a  state  of  complete  war  on  the  one 
side — of  peace  on   the  other.  .  .  . 

"  The  principle  avowed  in  the  Message  would  authorize  our  troops  to 
kill  those  of  the  invader,  if  they  should  come  within  reach  of  their  bayonets, 
perhaps  to  drive  them  into  the  sea,  and  drown  them ;  but  not  to  disable  them 
from  doing  harm,  by  the  milder  process  of  making  them  prisoners,  and 
sending  them  into  confinement.  Perhaps  it  may  be  replied,  that  the  same 
end  would  be  answered  by  disarming,  and  leaving  them  to  starve.  The 
merit  of  such  an  argument  would  be  complete  by  adding,  that  should  they 
not  be  famished,  before  the  arrival  of  their  ships  with  a  fresh  supply  of 
arms,  we  might  then,  if  able,  disarm  them  a  second  time,  and  send  them 
on  board  their  fleet,  to  return  safely  home.  .  .  . 

"  Who  could  restrain  the  laugh  of  derision  at  positions  so  preposterous, 
were  it  not  for  the  reflection  that  in  the  first  magistrate  of  our  country, 
they  cast  a  blemish  on  our  national  character?  What  will  the  world  think 
of  the  fold  when  such  is  the  shepherd?" 

President  Polk  approached  the  position  of  Hamilton  when  he 
met  the  Mexican  "invasion"  of  disputed  American  territory  by 
authorizing  the  battles  of  Palo  Alto  and  Resaca  de  la  Palma.  Fol- 
lowing these  engagements  he  said  in  his  message  of  May  11,  1846: 


12  2  Stat.  129. 

13  Hamilton,  Works,  Hamilton,  ed.,  7 :  745-748. 


288     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

"  After  reiterated  menaces,  Mexico  has  passed  the  boundary  of  the 
United  States,  has  invaded  our  territory  and  shed  American  blood  upon  the 
American  soil.  She  has  proclaimed  that  hostilities  have  commenced  and  that 
the   two  nations   are   now   at  war. 

"As  war  exists,  and,  notwithstanding  all  our  efforts  to  avoid  it,  exists 
by  the  act  of  Mexico  herself,  we  are  called  upon  by  every  consideration  of 
duty  and  patriotism  to  vindicate  with  decision  the  honor,  the  rights  and  the 
interests  of  our  country. 

"  In  further  vindication  of  our  rights  and  defense  of  our  territory, 
I  invoke  the  prompt  action  of  Congress  to  recognize  the  existence  of  the 
war,  and  to  place  at  the  disposition  of  the  Executive  the  means  of  prose- 
cuting the  war  with  vigor,  and  thus  hastening  the  restoration  of  peace."  ^* 

The  Supreme  Court  accepted  the  views  of  Hamilton  and  Polk,  when 
in  the  prize  cases,  it  held  that  President  Lincoln  had  properly 
recognized  the  southern  rebellion  as  war.^^ 

"  If  a  war  be  made  by  invasion  of  a  foreign  nation,  the  President  is 
not  only  authorized  but  bound  to  resist  force  by  force.  He  does  not  initiate 
the  war,  but  is  bound  to  accept  the  challenge  without  waiting  for  any 
special  legislative  authority.  And  whether  the  hostile  party  be  a  foreign 
invader,  or  States  organized  in  rebellion,  it  is  none  the  less  a  war,  although 
the  declaration  of  it  be  'unilateral.'  Lord  Stowell  (i  Dodson  247)  ob- 
serves, '  It  is  not  the  less  a  war  on  that  account,  for  war  may  exist  without 
a  declaration  on  either  side.  It  is  so  laid  down  by  the  best  writers  on  the 
law  of  nations.  A  declaration  of  war  by  one  country  only  is  not  a  mere 
challenge  to  be  accepted  or  refused  at  pleasure  by  the  other.'  .  .  . 

"  This  greatest  of  civil  wars  was  not  gradually  developed  by  popular 
commotion,  tumultuous  assemblies,  or  local  unorganized  insurrections.  How- 
ever long  may  have  been  its  previous  conception,  it  nevertheless  sprung  forth 
suddenly  from  the  parent  brain,  a  Minerva  in  the  full  panoply  of  war.  The 
President  was  bound  to  meet  it  in  the  shape  it  presents  itself,  without  wait- 
ing for  Congress  to  baptize  it  with  a  name ;  and  no  name  given  to  it  by  him 
or  them  could  change  the  fact.  .  .  . 

"  Whether  the  President,  in  fulfilling  his  duties  as  Commander-in-Chief 
in  suppressing  an  insurrection,  has  met  with  such  armed  hostile  resistance, 
and  a  civil  war  of  such  alarming  proportions,  as  will  compel  him  to  accord 
to  them  the  character  of  belligerents,  is  a  question  to  be  decided  by  him, 
and  this  Court  must  be  governed  by  the  decision  and  acts  of  the  political 
department  of  the  government  to  which  this  power  was  intrusted.  '  He 
must  determine  what  degree  of  force  the  crisis  demands.'  The  Proclamation 
of  blockade  is  itself  official  and  conclusive  evidence  to  the  Court  that  a 
state  of  war  existed  which  demanded  and  authorized  a  recourse  to  such  a 
measure,  under  the  circumstances  peculiar  to  the  case." 


1*  Richardson,  Messages,  4 :  442-443. 

15  The  Prize  Cases,  2  Black  635,  638.     Approved  Matthews  v  McStea, 
91  U.  S.  7  (1875). 


WAR  AND  THE  USE  OF  FORCE.  289 

President  McKinley  accepted  this  opinion  and  applied  it  to  foreign 
war  when  on  April  22,  1898,  he  recognized  the  Spanish  rejection  of 
the  congressional  ultimatum  of  April  20/^  as  a  declaration  of  war 
and  authorized  a  blockade  of  Cuba.^^  Three  days  later,  on  April 
25,  Congress  passed  a  resolution  declaring :  ^® 

"  That  war  be,  and  the  same  is  hereby,  declared  to  exist,  and  that  war 
has  existed  since  the  twenty-first  day  of  April,  Anno  Domini  eighteen  hun- 
dred and  ninety-eight,  including  said  day,  between  the  United  States  of 
America  and  the  Kingdom  of  Spain." 

In  his  war  message  of  April  2,  1917,  President  Wilson  asked 
"  Congress  to  declare  the  recent  course  of  the  German  government 
to  be  in  fact  nothing  less  than  war  against  the  United  States." 
Nevertheless,  he  admitted  that  it  belonged  to  Congress  to  "  formally 
accept  the  status  of  belligerent  which  has  thus  been  thrust  upon 
it."  Congress  did  so  by  a  resolution  signed  by  the  President  i  :i8 
p.m.,  April  6,  1917,  which  asserted  "that  the  state  of  war  between 
the  United  States  and  the  Imperial  German  Government  which  has 
thus  been  thrust  upon  the  United  States  is  hereby  formally  de- 
clared." 1^ 

210.  The  Power  to  Recognise  War. 

Practice  and  opinion  indicate  that  the  President  concurrently  with 
Congress  has  power  to  recognize  the  existence  of  civil  or  foreign  war 
against  the  United  States.  It  is  believed,  however,  that  such  power 
could  not  properly  be  exercised  unless  the  fact  of  war  against  the 
United  States  was  so  patent  as  to  leave  no  doubt.  Acts  of  war, 
such  as  those  committed  by  Germany  from  191 5  to  1917,  would  not 
justify  presidential  recognition  of  war.  In  fact  it  is  believed  that 
with  the  general  acceptance  of  the  III  Hague  Convention  of  1907, 


i«30  Stat.  738;  Moore,  Digest,  6:  226. 

17  Message  April  25,  1898,  Moore,  Digest,  6:  229. 

"30  Stat.  364. 

laComp.  Stat.,  p.  17,  Naval  War  College,  Int.  Law  Doc,  igiy,  P-  225. 
A  resolution  of  Dec.  7,  1917,  stated:  "Whereas  the  Imperial  and  Royal 
Austro-Hungarian  Government  has  committed  repeated  acts  of  war  against 
the  Government  and  the  people  of  the  United  States  of  America:  Therefore 
be  it  Resolved  .  .  .  That  a  state  of  war  is  hereby  declared  to  exist  between, 
etc."    Ibid.,  1917,  p.  230. 


290     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

by  which  "  the  contracting  powers  recognize  that  hostihties  between 
themselves  must  not  commence  without  previous  and  expHcit  warn- 
ing, in  the  form  either  of  a  declaration  of  war,  giving  reasons,  or  of 
an  ultimatum  with  conditional  declaration  of  war,"  the  President  could 
not  consider  any  act  by  a  foreign  power,  short  of  such  declaration  or 
ultimatum,  as  a  justification  for  recognition  of  war  on  his  own  re- 
sponsibility. The  commencement  of  war  implies  not  only  "acts  of 
war "  but  also  the  intention  to  make  war.^"  Thus  where  acts  of 
violence  or  reprisal  alone  are  in  question,  Congress  is  the  only  au- 
thority that  can  put  the  country  in  a  state  of  war,  though  the  President 
may  take  defensive  measures,  and  doubtless  with  a  wider  scope  than 
President  Jefferson's  message  of  1801  indicated. 

211.  The  Pozvcr  to  Declare  War. 

Where  no  war  exists  in  fact.  Congress  is  the  only  authority  in 
the  United  States  that  can  declare  one,  and  Congress  cannot  dele- 
gate this  power. 

"  The  Constitution,"  said  Senator  Stone,  of  Missouri,  "  vests  the  war- 
making  power  alone  in  the  Congress.  It  is  a  power  that  Congress  is  not 
at  Hberty  to  delegate.  Moreover,  I  am  personally  unwilling  to  part  with 
my  constitutional  responsibility  as  a  Senator  to  express  my  judgment  upon 
the  issue  of  war,  whenever  and  however  it  may  be  presented."  21 

However,  this  does  not  mean,  as  Senator  Stone  was  contending 
when  he  made  this  unimpeachable  statement,  that  Congress  cannot 
delegate  power  to  the  President  to  use  force  for  protective  pur- 
poses.^^  Nor  does  it  mean  that  the  treaty-making  power  may  not 
create  an  obligation  upon  Congress  to  declare  war  or  to  refrain  from 
declaring  it  under  given  circumstances.^' 

212.  The  Power  to  Terminate  War. 

Though  war  may  be  begun  by  one  nation,  it  takes  two  to  end  it. 
The  President  can  make  an  armistice  which  suspends  or  terminates 


20  The  Ekaterinoslav,  The  Argun,  Takahashi,  International  Law  Ap- 
plied to  the  Russo-Japanese  War,  pp.  573,  761 ;  Cobbett,  Leading  Cases  on 
International  Law,  pp.  78. 

21  Cong.  Rec,  64th  Cong.,  2d  Sess.,  p.  5895 ;  Corwin,  op.  cit.,  p.  153. 

22  In  the  Federal  Convention,  Aug.  17,  1787,  "declare"  war  was  sub- 
stituted for  "  make  "  war  on  motion  of  Madison  and  Gerry  so  as  to  "  leave 
the  executive  the  power  to  repel  sudden  attacks."     Farrand,  op.  cit.,  2:  318. 

'^^  Supra,  sees.  37,  59,  151,  173. 


WAR  AND  THE  USE  OF  FORCE.  291 

hostilities  but  the  treaty-making  power  must  ordinarily  act  to  ter- 
minate the  war. 

"  I  have  yet  to  learn,"  wrote  Secretary  of  State  Bayard.  "  that  a  war 
in  which  the  belligerents,  as  was  the  case  with  the  late  Civil  War,  are 
persistent  and  determined,  can  be  said  to  have  closed  until  peace  is  con- 
clusively established,  either  by  treaty  when  the  war  is  foreign,  or  when  civil 
by  proclamation  of  the  termination  of  hostilities  on  one  side  and  the  ac- 
ceptance of  such  proclamation  on  the  other.  The  surrender  of  the  main 
armies  of  one  of  the  belligerents  does  not  of  itself  work  such  termination."  2* 

However,  as  the  quotation  suggests,  war  may  be  terminated  in  two 
other  ways,  by  complete  conquest,  causing  annihilation  of  one  bel- 
ligerent, or  by  cessation  of  hostilities  and  tacit  acceptance  of  peace 
by  both  parties. ^^  The  South  African  and  American  civil  wars 
illustrate  the  first  method ;  the  wars  between  Spain  and  her  revolt- 
ing American  colonies  the  second. 

213.  The  Power  to  Recognize  the  Termination  of  War. 

What  authority  in  the  United  States  can  determine  the  exact 
date  at  which  a  war  terminates  in  these  circumstances?  The  ques- 
tion is  one  of  fact  and  the  recognition  of  facts  in  international  rela- 
tions is  normally  a  function  of  the  President.  Thus  President 
Johnson  proclaimed  the  end  of  the  Civil  War  and  the  courts  recog- 
nized these  proclamations  as  authoritative.^^  Secretary  of  State 
Seward  seems  to  have  assumed  likewise  that  the  Executive  could 
recognize  the  end  of  a  war  between  two  foreign  states,  when  in  1868 
he  informed  the  Spanish  minister  that  "the  United  States  may  find 
itself  obliged  to  decide  the  question  whether  the  war  still  exists  be- 
tween Spain  and  Peru,  or  whether  that  war  has  come  to  an  end."  ^^ 

The  question  of  terminating  a  war  by  proclamation,  made  by 
one  side  and  acquiesced  in  by  the  other,  was  raised  by  the  Knox 


2*  Moore,  Digest,  7 :  2i7-  Jefferson  thought  "  general  letters  of  mark 
and  reprisal "  might  be  preferred  to  a  formal  declaration  of  war,  "  be- 
cause, on  a  repeal  of  their  edicts  by  the  belligerent,  a  revocation  of  the 
letters  of  mark  restores  peace  without  the  delay,  difficulties  and  ceremonies 
of  a  treaty."     Letter  to  Mr.  Lincoln,   1808,  ibid.,  7:   123. 

25  Wilson  and  Tucker,  op.  cit.,  pp.  281-282. 

3«i4  Stat.  811,  13  Stat.  814,  The  Protector,  12  Wall.  700. 

2T  Moore,  Digest,  7 :  2:^7. 


292     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

resolution  of  May  21,  1920,  for  repealing  the  declarations  of  war 
against  Germany  and  Austria.  This  resolution  was  vetoed  by 
President  Wilson  on  May  27,^^  because  it  "  does  not  seek  to  accom- 
plish any  of  these  objects"  for  which  the  United  States  entered  the 
war,  but  when  again  introduced  by  the  Senate  Foreign  Relations 
Committee,  April  25,  192 1,  it  passed  both  Houses  and  was  signed  by 
President  Harding,  July  2,  1921.  The  Resolution  was  defended  on 
the  ground  that  what  Congress  could  pass  it  could  repeal.  This 
assumption  fails  to  recognize  the  distinction  between  an  act  of  legis- 
lation and  a  resolution  creating  a  status  or  condition.  Congress  can- 
not, in  general,  repeal  resolutions  of  the  latter  class,  of  which  resolu- 
tions admitting  states  to  the  Union,  incorporating  territory,  admitting 
nationals  to  citizenship,  etc.,  are  examples.  An  act  of  Congress  can 
undoubtedly  terminate  war  legislation  and  bring  war  to  an  end  so  far 
as  domestic  law  is  concerned,'®^  but  its  international  effect,  whatever 
its  wording,  depends  upon  the  attitude  of  the  enemy.  This  was 
recognized  by  President  Harding  when  he  submitted  to  the  Senate 
draft  treaties  by  which  the  enemy  powers  accepted  the  resolution  of 
July  2,  1921  :  ^^^ 

"Formal  Peace,"  he  wrote  to  Senator  Lodge  on  September  21,  1921,  "has 
been  so  long  delayed  that  there  is  no  need  now  to  emphasize  the  desirability 
of  early  action  on  the  part  of  the  Senate.  It  will  be  most  gratifying  if  you  and 
your  colleagues  will  find  it  consistent  to  act  promptly  so  that  we  may  put 
aside  the  last  remnant  of  war  relationship  and  hasten  our  return  to  the 
fortunate  relations  of  peace." 

We  have  noticed  that  the  power  of  recognizing  foreign  states, 
governments   and  belligerency   is  vested   exclusively   in  the  Presi- 


28  See  note  by  C.  P.  Anderson,  Am.  Jl.  Int.  Law,  14:  384  (July,  1920). 
Text  of  Resolution,  ibid.,  p.  419;  legislative  history,  ibid.,  p.  438;  veto  mes- 
sage, Cong.  Rec,  59:  7747.  See  also  Corwin,  Mich.  Law  Rev.,  18:  669  (May, 
1920). 

28a  This  was  accomplished  in  part  by  a  Resolution  of  March  3,  1921  (41 
Stat.  1359),  and  in  full  by  that  of  July  2,  1921.  See  remarks  of  Senator 
Lodge,  Cong.  Rec,  Sept.  24,  1921,  61 :  6434. 

28i>  Cong.  Rec,  Sept.  24,  1921,  61 :  6434.  In  presenting  the  treaties  from 
the  Committee  on  Foreign  Relations  Senator  Lodge  remarked:  "Where 
would  the  failure  to  ratify  leave  us?  It  would  leave  us  where  we  are  today — 
in  a  technical  state  of  war  with  Germany,  Austria,  and  Hungary."  Ibid.,  Sep- 
tember 26,  1921,  61  :  6458. 


WAR  AND  THE  USE  OF  FORCE.  293 

dent.^^  The  power  to  recognize  the  existence  of  war  to  which  the 
United  States  is  a  party  is  vested  concurrently  in  the  President  and 
Congress,  the  latter  having  the  power  by  implication  from  its  ex- 
press power  to  declare  war.^"  No  constitutional  clause  has  been 
cited  from  which  congressional  power  to  recognize  the  termination 
of  war  can  be  implied.  On  the  contrary  a  resolution  vesting 
Congress  with  power  to  "  make  peace  "  was  voted  down  in  the  Fed- 
eral Convention  of  1787." 

The  President's  power  to  recognize  the  termination  of  war  may 
be  clearly  deduced  from  his  power  as  the  representative  organ  and 
has  been  admitted  by  the  Supreme  Court  in  the  case  of  the  Civil 
War.^^  His  proclamation  or  his  reception  or  dispatch  of  diplomatic 
representatives  from  or  to  a  former  enemy  therefore  seems  the  proper 
method  for  recognizing  peace  in  the  absence  of  treaty,  though,  as  in 
the  case  of  recognizing  new  states,  he  is  of  course  free  to  solicit  the 
advice  of  Congress,  which  action  would  usually  be  desirable.  This 
was  the  course  actually  followed  in  terminating  the  wars  with  Ger- 
many, Austria,  and  Hungary.  By  his  proclamation,  issued  on  No- 
vember 14,  1921,^-'^  after  exchange  of  ratifications  of  the  treaty  with 
Germany  of  August  25  (and  similar  treaties  with  the  other  powers) 
President  Harding  recognized  that  the  war  terminated  on  July  2, 
192 1,  the  date  on  which  Congress  had  passed  a  resolution  declaring 
the  war  "  at  an  end."  The  antedating  of  the  proclamation  indi- 
cates that  the  war  terminated,  not  by  express  treaty,  but  by  tacit 
agreement,  recognized  in  the  United  States  by  the  President,  when, 
in  his  opinion,  there  was  sufficient  evidence  that  Germany  had  con- 
curred in  the  opinion  expressed  by  the  United  States  on  July  2. 

B.  The  Power  to  Use  Force  in  Foreign  Affairs. 

214.  Diplomatic  Pressure. 

Force,  coercion,  or  pressure  may  assume  a  number  of  forms  in 
the  conduct  of  foreign  relations.     The  sending  of  notes,  the  making 


^9  Supra,  sec.  194. 

30  Supra,  sec.  210. 

31  Debate,  Aug.   17,   1787,  Farrand,  op.  cit.,  2:  319. 

32  The  Protector,  12  Wall.  700. 
32a  Treaty  Series  No.  658. 


294     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

of  formal  protest,  the  withdrawal  of  a  minister  or  ambassador,  or 
the  complete  severance  of  diplomatic  relations  are  milder  forms  of 
pressure,  although  all  may  carry  implications  of  more  serious  action, 
and  the  last  is  seldom  resorted  to  except  as  a  preliminary  to  war. 
These  acts  are  within  the  exclusive  power  of  the  President.^^ 

215.  Display  of  Force. 

A  more  material  means  of  bringing  pressure  is  the  display  of 
force.  This  measure  may  be  designed  to  bring  pressure  upon  a 
foreign  government  by  intimidation ;  to  bring  protection  to  mer- 
chant vessels  on  the  high  seas ;  or  to  bring  order  on  the  high  seas 
through  the  intimidation  of  pirates,  slave  traders,  etc.  The  Pres- 
ident as  Commander-in-Chief  has  power  to  move  the  navy. 
President  Roosevelt's  dispatch  of  a  naval  vessel  to  Colon,  Panama, 
in  1903  illustrates  the  effectiveness  of  such  methods.  His  dis- 
patch of  the  fleet  around  the  world  in  1903  furnishes  another  illus- 
tration.^* Display  of  force  is  useless  as  an  agency  of  intimidation 
unless  the  party  to  be  intimidated  believes  the  force  has  power  to 
act.  Hence  this  method  of  bringing  pressure  can  hardly  be  sep- 
arated from  such  methods  as  the  occupation  of  territory,  reprisals, 
and  the  seizure  of  private  property.  Consequently  the  use  of  the 
navy  for  intimidation  should  be  authorized  by  the  President  only 
after  due  consideration  and  never  by  a  subordinate  except  in  extreme 
emergency.  Thus  in  1887  Secretary  of  State  Bayard  wrote  the 
Charge  in  Peru : " 

"  It  is  always  expected  that  the  agents  of  this  Department  abroad  will 
exercise  extreme  caution  in  summoning  national  war  vessels  to  their  aid 
at  critical  junctures,  especially  if  there  be  no  practical  purpose  to  be  sub- 
served by  their  presence." 

Congress  has  on  several  occasions  authorized  the  display  of 
force  for  protecting  merchant  vessels.  Such  authority  was  given 
by  several  acts  of  1798  to  defend  them  against  French  privateers. 
On  February  25,  191 7,  President  Wilson  asked  Congress  to  authorize 

33  Moore,  Digest,  7 :  103. 

^*  Supra,  sec.  145,  Thayer,  Life  of  John  Hay,  2:  351.  President  Roose- 
velt's threat  to  employ  force  if  Germany  refused  to  arbitrate  the  Venezuela 
question  in  1904,  may  also  be  mentioned,  Ibid.,  2 :  287. 

85  Moore,  Digest,  7:  109,  see  also  Mr.  Adee  to  Mr.  Sill,  1895,  ibid.,  2:  401. 


WAR  AND  THE  USE  OF  FORCE.  296 

the  arming  of  merchant  vessels  as  a  defense  against  German  sub- 
marines but  added :  ^^ 

"  No  doubt  I  already  possess  that  authority  without  special  warrant  of 
law,  by  the  plain  implication  of  my  constitutional  duties  and  powers,  but  I 
prefer  in  the  present  circumstances  not  to  act  upon  general  implication.  1 
wish  to  feel  that  the  authority  and  the  power  of  the  Congress  are  behind  me 
in  whatever  it  may  become  necessary  for  me  to  do." 

The  proposed  measure  passed  the  House  of  Representatives  but 
was  defeated  by  a  Senate  fiUbuster.  Several  Senators  attacked  it 
as  an  unconstitutional  delegation  of  the  power  to  declare  war. 
However,  on  March  12th,  Secretary  of  State  Lansing  gave  out  a 
statement  to  the  foreign  legations  in  Washington  that : " 

"  The  government  of  the  United  States  has  determined  to  place  upon  all 
American  merchant  vessels  sailing  through  the  barred  areas,  an  armed 
guard  for  the  protection  of  the  vessels  and  the  lives  of  the  persons  on 
board." 

President  John  Adams  had  no  doubt  of  his  power  to  authorize  the 
arming  of  merchant  vessels,  although  he  asked  Congress  to  make 
detailed  regulations  for  this  purpose  as  it  did  in  1798.^^  The  neu- 
trality laws  appear  expressly  to  recognize  the  President's  power  by 
requiring  armed  merchant  vessels  leaving  American  ports  to  give 
bond  "until  the  decision  of  the  President  is  had  thereon."  ^^  It 
should  be  noticed,  however,  that  international  law,  as  interpreted 
in  American  courts,  authorizes  the  condemnation  by  a  belligerent 
of  merchant  vessels  resisting  visit  and  search,^"  and  an  act  of  1819, 
still  in  effect,  expressly  prohibits  resistance  to  "  a  public  armed 
vessel  of  some  nation  in  amity  with  the  United  States."*^  The 
President's  power  to  authorize  arming  is,  however,  clear,  as  is 
his  power  to  authorize  protection  by  naval  convoys.*^ 


36  Corwin,  op.  at.,  p.  152. 

37  Naval  War  College,  Int.  Law  Docs.,   1917,  P-  225. 

38  Message,  May  16,  1797,  Richardson,  Messages,  i :  237. 

39  Criminal  Code  of  1910,  sec.  17. 

40  The  Bermuda,  3  Wall.  514;  The  Jane,  37  Ct.  CI.  24;  The  Rose,  37  Ct. 
CI.  240;  Moore,  Digest,  7:  485-487;  Naval  War  College,  Int.  Law  Topics, 
1903,  p.  no;  1907,  p.  61. 

41  Act  March  3,  1819,  3  Stat.  513,  made  permanent  Jan.  30,  1823,  3  Stat. 
721.     See  also  remarks  of  J.  Q.  Adams,  Moore,  Pigest,  7-  492. 

*^  Ibid.,  7:  492;  Corwin,  op.  cit.,  p.  156, 


296     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

Congress  has  sometimes  authorized  the  use  of  the  navy  for  police 
purposes  on  the  high  seas,  as  to  enforce  neutrahty  and  the  suppres- 
sion of  piracy  and  the  slave  trade  as  required  by  treaty,  but  the 
President  would  seem  to  have  power  even  in  the  absence  of  such  acts, 
though  seizures  could  not  be  made  except  of  American  vessels, 
pirates,  or  vessels  liable  under  treaties.*^ 

Forces  may  also  be  displayed  on  land  frontiers  by  authority  of 
the  President  as  a  defensive  measure.  An  illustration  is  furnished 
by  the  mobilization  on  the  Mexican  border  in  1914.** 

216.  Occupation  and  Administration  of  Territory. 

The  President  doubtless  has  power  to  order  the  occupation  of 
foreign  territory  to  defend  the  territory  of  the  United  States 
against  an  "  instant  and  overwhelming  "  menace.^^  Thus  the  Amelia 
Island  pirates  were  destroyed  in  1817  and  General  Pershing's  ex- 
pedition was  sent  into  Mexico  in  pursuit  of  Villa  in  1916."*^  An 
"instant  and  overwhelming"  menace  to  American  citizens  abroad 
would  give  similar  justification.  The  bombardment  of  Greytown, 
Nicaragua,  in  1852  and  the  dispatch  of  troops  to  Peking  in  1901  are 
illustrations.*^  The  President  may  similarly  dispatch  troops  in  fulfil- 
ment of  treaty  guarantees.  Thus  several  Presidents  dispatched 
troops  to  Panama  in  pursuance  of  the  guarantee  treaty  of  1846  and 
President  Roosevelt  sent  troops  to  Cuba  in  1906  in  pursuance  of  the 
treaty  of   1903.'** 

Where  foreign  territory  is  occupied  in  order  to  bring  pressure 
upon  a  foreign  government,  the  action  is  very  likely  to  lead  to  war 
and  an  authorizing  resolution  of  Congress  would  seem  necessary. 
However,  such  occupations  have  occurred  without  express  authoriza- 
tion, as  for  example  President  Taft's  dispatch  of  troops  to  Nicara- 
gua and  San  Domingo,  and  President  Wilson's  dispatch  of  troops  to 

*^  Supra,  sees.  125,  126,  151. 

**Am.  Year  Book,  1914,  p.  303. 

45  The  legitimacy  of  self-help  in  the  presence  of  "a  necessity  of  self- 
defense,  instant,  overwhelming  and  leaving  no  choice  of  means  and  no 
moment  for  deliberation"  vi^as  recognized  in  the  Caroline  controversy  of 
1840,  Moore,  Digest,  2:  412. 

*"  For  other  instances  see  Moore,  2 :  402-408. 

*''  Ibid.,  2:  400-402,  414-418;  5:  476-493. 

*"  Supra,  sec.  145,  Taft,  op.  cit.,  p.  87. 


WAR  AND  THE  USE  OF  FORCE.  297 

San  Domingo,  Haiti,  and  Vera  Cruz,  Mexico.'"'  In  such  cases  ratify- 
ing resolutions  have  frequently  been  passed  after  the  act,  or  treaties 
have  been  made  with  the  occupied  state.^" 

Occupation  of  enemy  territory  is,  of  course,  a  legitimate  method 
of  warfare,  and  a  declaration  of  war,  ex  propria  vigore,  authorizes 
the  President  to  both  occupy  and  militarily  govern  enemy  territory, 
although  it  does  not  authorize  him  to  annex  it.^^ 

217.  Capture  and  Destruction  of  Foreign  Military  Forces. 

The  dispatch  of  military  or  naval  forces  to  capture  or  destroy 
the  forces  of  a  foreign  government  would  seem  to  bear  such  a  close 
resemblance  to  war  that  it  could  hardly  be  authorized  by  the  Pres- 
ident alone.  However,  as  we  have  seen  in  the  case  of  the  Tripolitan 
"war"  of  1801,  President  Jefferson  took  such  action,  which  was 
subsequently  ratified  by  Congress.  President  Polk  did  the  same  in 
the  Mexican  war,  though  according  to  his  theory  the  battles  of 
Palo  Alto  and  Resaca  de  la  Palma  were  fought  on  United  States 
territory  in  repelling  invasion.  Commodore  Perry  seems  to  have 
been  authorized  to  use  force  to  open  Japan  in  1852  and  the  Wyoming 
had  similar  authority  to  aid  in  the  opening  of  the  Straits  of  Shi- 
minoseki,  Japan,  in  1864.^-  In  fact  in  most  cases  of  display  of 
force,  undoubtedly  an  ultimate  use  of  force  was  authorized.  Naval 
officers  have  often  been  sent  on  diplomatic  missions  by  authority 
of  the  President  alone,  to  semi-civilized  states,  with  the  evident 
intention  that  force  should  not  only  be  displayed  but  used  if  nec- 
essary.^^ 

Use  of  military  force  against  foreign  powers  has  often  been 
authorized  by  Congress  without  declaration  of  war.  This  was 
true  of  resolutions  relating  to  France  in  1798,  to  TripoU  in  1801, 


*9  Corwin,  op.  cit.,  p.  162,  supra,  sec.  207. 

•50  Thus  a  ratifying  resolution  was  passed  after  the  Vera  Cruz  incident 
of  1914,  and  a  treaty  authorizing  the  exercise  of  a  police  power  by  the 
United  States  was  made  with  Haiti  after  the  intervention  had  begun. 

■51  Cross  V.  Harrison,  16  How,  164;  Santiago  v.  Nogueras,  214  U.  S. 
260;  Fleming  v.  Page,  9  How.  603. 

52  Moore,  Digest,  7:   112-118. 

^^  Infra,  sec.  239.  See  also  Paullin,  Diplomatic  Negotiations  of  Ameri- 
can Naval  Officers,  Baltimore,  1912. 


298     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

to  Algiers  in  1816,  to  Paraguay  in  the  Water  Witch  incident  of 
1858,  to  Venezuela  in  1890.^* 

A  declaration  or  recognition  of  war  of  course  automatically 
gives  full  power  to  the  President  to  authorize  an  attack  upon  the 
military  forces  of  the  enemy. 

218.  Seizure  and  Destruction  of  Private  Property, 

Congress  is  expressly  given  power  to  "  grant  letters  of  marque 
and  reprisal,  and  make  rules  concerning  captures  on  land  and 
water."  ^^  The  President  has  no  power  to  direct  the  capture  of 
private  property  without  express  authorization  of  statute,  treaty, 
or  international  law.  Congress  may  authorize  the  grant  of  letters  of 
marque  and  reprisal  in  time  of  peace,  but  has  never  done  so."* 
During  the  war  of  1812  privateering  commissions  were  issued  and 
in  the  Civil  War  they  were  authorized  but  not  issued.  Privateering 
is  prohibited  by  the  Declaration  of  Paris  of  1856,  and  though  the 
United  States  has  never  acceded,  yet  it  has  not  resorted  to  the 
practice  in  subsequent  wars.°^  Congress  may  authorize  naval 
forces  to  make  reprisal  upon  private  property  at  sea  in  time  of 
peace.  Thus  President  Jackson  asked  Congress  to  authorize  him 
to  make  reprisals  against  French  vessels  in  view  of  the  non-execu- 
tion of  the  claims  treaty  of  1831 :  ^^ 

"  The  laws  of  nations,"  said  President  Jackson,  "  provide  a  remedy  for 
such  occasions.  It  is  a  well  settled  principle  of  the  international  code  that 
where  one  nation  owes  another  a  liquidated  debt,  which  it  refuses  or 
neglects  to  pay,  the  aggrieved  party  may  seize  on  the  property  belonging  to 
the  other,  its  citizens  or  subjects,  sufficient  to  pay  the  debt,  without  giving 
just  cause  of  war.  This  remedy  has  been  repeatedly  resorted  to,  and 
recently  by  France  herself  towards  Portugal,  under  circumstances  less  un- 
questionable." 

Clay,  in  his  report  from  the  Senate  Committee  on  Foreign  Relations, 

wrote :  °* 

"  Reprisals  do  not  of  themselves  produce  a  state  of  public  war  but  they 
are    not    unfrequently    the    immediate    precursor    of    it.  .  .  .  The    authority 


•>*  Moore,  Digest,  7:   109-112. 

°' U.  S.  Constitution,  I,  sec.  8,  cl.  11. 

""Mr.  Sanford  to  Mr.  Cass,  Aug.  16,  1857,  Moore,  Digest,  7:   122. 

"/btU.  7:  544,  558,  558. 

'^^  Ibid.,  7:   124. 

^^  Ibid.,  7:   126-127. 


WAR  AND  THE  USE  OF  FORCE.  299 

to  grant  letters  of  marque  and  reprisal  being  specially  delegated  to  Congress, 
Congress  ought  to  retain  to  itself  the  right  of  judging  of  the  time  when  they 
are  proposed  to  be  actually  issued.  The  committee  are  not  satisfied  that 
Congress  can,  constitutionally,  delegate  this  right." 

Congress  has,  in  fact,  never  authorized  reprisals  upon  private  prop- 
erty in  time  of  peace,  though  reprisals  and  military  expeditions 
against  foreign  territory  both  with  and  without  congressional  au- 
thorization have  often  resulted  in  the  destruction  of  private  prop- 
erty, as  did  the  Greytown,  Nicaragua,  bombardment  of  1852,  and 
the  Vera  Cruz  occupation  of  1914.  By  a  declaration  of  war, 
Congress  authorizes  general  reprisals  against  enemy  property  at 
sea  so  far  as  permitted  by  international  law. 

Treaties  may  provide  for  making  captures  of  private  property, 
as  in  suppressing  the  slave  trade  and  seal  poaching.  The  President 
has  power  to  employ  the  navy  and  revenue  cutter  service  to  enforce 
treaties  without  other  authority,  though  Congress  has  usually  given 
him  express  authority.*"' 

International  law  authorizes  the  capture  on  the  high  seas  of 
pirates  at  all  times  and  of  enemy  and  certain  neutral  private  prop»- 
erty  in  time  of  war.  The  President's  powers  in  this  regard  derive 
from  international  law  and  are  limited  by  it.  He  can  authorize  the 
capture  of  enemy  and  neutral  private  property  at  sea  only  as 
permitted  by  that  law,  which  is  enforced  by  prize  courts  before 
which  captures  must  be  brought  for  condemnation.  Before  the 
courts,  an  order  of  the  President  contrary  to  international  law, 
unless  authorized  by  express  statute,  will  not  justify  the  captor.*^ 

Private  property  on  land,  even  of  the  enemy,  is  exempt  from 
seizure  under  international  law,  except  when  "  military  necessity  " 
permits  its  requisition,  sequestration,  contribution,  or  destruction.*' 
The  President,  it  has  been  held,  cannot  authorize  a  general  con- 
fiscation of  enemy  property.  Thus,  said  the  Supreme  Court  in 
Mitchell  V.  Harmony :  ^^ 

^^  Supra,  sees.  118,  119,  125,  126. 

•1  Little  V.  Barreme,  2  Cranch  170. 

62  IV  Hague  Conventions,  1907,  Arts.  46-56. 

«' Mitchell  V.  Harmony,  13  How.   115   (1851). 


300     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

"  There  are,  without  doubt,  occasions  in  which  private  property  may 
lawfully  be  taken  possession  of  or  destroyed  to  prevent  it  from  falling  into 
the  hands  of  the  public  enemy;  and  also  where  a  military  officer,  charged 
with  a  particular  duty,  may  impress  private  property  into  the  public  service 
or  take  it  for  public  use.  Unquestionably,  in  such  cases,  the  government  is 
bound  to  make  full  compensation  to  the  owner;  but  the  officer  is  not  a 
trespasser. 

"  But  we  are  clearly  of  opinion,  that  in  all  of  these  cases  the  danger 
must  be  immediate  and  impending;  or  the  necessity  urgent  for  the  public 
service,  such  as  will  not  admit  of  delay,  and  where  the  action  of  the  civil 
authority  would  be  too  late  in  providing  the  means  which  the  occasion 
calls  for.  It  is  impossible  to  define  the  particular  circumstances  of  danger 
or  necessity  in  which  this  power  may  be  lawfully  exercised.  Every  case  must 
depend  on  its  own  circumstances.  It  is  the  emergency  that  gives  the  right, 
and  the  emergency  must  be  shown  to  exist  before  the  taking  can  be 
justified." 

Congress,  however,  under  its  power  to  make  rules  concerning 
capture  on  land  and  water  may  authorize  seizures  contrary  to  inter- 
national law.^*  In  Brown  v.  United  States,  during  the  War  of  1812, 
Chief  Justice  Marshall  refused  to  permit  the  confiscation  of  British 
property  on  land  since  Congress  had  not  expressly  acted.®^ 

"Does  that  declaration  (of  war),  by  its  own  operation,  so  vest  the 
property  of  the  enemy  in  the  government,  as  to  support  proceedings  for 
its  seizure  and  confiscation,  or  does  it  vest  only  a  right,  the  assertion  of 
which  depends  on  the  will  of  the  sovereign  power?  The  universal  practice 
of  forbearing  to  seize  and  confiscate  debts  and  credits,  the  principle  uni- 
versally received,  that  the  right  to  them  revives  on  the  restoration  of  peace, 
would  seem  to  prove  that  war  is  not  an  absolute  confiscation  of  this  property, 
but  simply  confers  the  right  of  confiscation.  ...  It  appears  to  the  court,  that 
the  power  of  confiscating  enemy  property  is  in  the  legislature,  and  that 
the  legislature  has  not  yet  declared  its  will  to  confiscate  property  which  was 
within  our  territory  at  the  declaration  of  war." 

In  view  of  these  decisions,  and  considering  the  Emancipation 
Proclamation  of  January  i,  1863,  as  a  general  confiscation  of  a  par- 
ticular type  of  enemy  property  by  proclamation  of  the  President, 
there  is  serious  ground  for  doubting  the  constitutionality  of  that 
proclamation.^^     The    doubt,    however,    was    very    soon,   removed 

«*  Miller  v.  U.  S.,  n  Wall.  268;  Willoughby,  op.  cit.,  p.  1220. 

"s  Brown  v.  U.  S.,  8  Cranch  no  (1814).  It  is  doubtful  whether  inter- 
national law  at  present  confers  a  "right  of  confiscation"  even  upon  the  sov- 
ereign authority.     Supra,  note  62. 

♦"Richardson,  Messages,  6:  85,  96,  157;  Burgess,  Civil  War  and  Re- 
construction, 2:  117;  Rhodes,  History  of  U.  S.,  4:  70,  supra,  sec.  47,  note  59. 


WAR  AND  THE  USE  OF  FORCE.  301 

by  passage  of  the  thirteenth  amendment.  During  the  Civil  War, 
Congress  authorized  the  confiscation  of  many  kinds  of  enemy  prop- 
erty on  land,  and  during  the  World  War  it  authorized  sequestration 
of  such  property  in  the  United  States  by  an  alien  property  custo- 
dian.^^ 

219.  Commercial  Pressure  and  Retaliation. 

Through  its  power  to  regulate  foreign  commerce,  the  postal  serv- 
ice and  by  implication  all  means  of  conveyance  and  transmission 
of  intelligence  with  foreign  nations,  Congress  may  bring  pressure  by 
means  of  retorsion,  retaliation,  non-intercourse  and  embargoes. 

Measures  of  retorsion  and  retaliation  have  been  frequent.  Thus 
by  an  act  of  1818,  "  the  ports  of  the  United  States  were  closed,  after 
September  30,  1818,  against  British  vessels  arriving  from  a  British 
colony  which,  by  the  ordinary  laws,  v/as  closed  against  American 
vessels."  ^^  The  general  revenue  act  of  September  8,  1916,  pro- 
vides for  retaliation  against  British  commercial  restrictions,  the 
black  list  and  mail  seizures  although  that  country  was  not  spe- 
cifically referred  to.^^  An  act  to  protect  American  oil  investors 
abroad  by  retorsion  was  thus  referred  to  in  a  note  of  November  10, 
1920,  protesting  against  the  Allied  policy  in  Asia  Minor :  ''^ 

"  The  General  leasing  law  of  February  25,  1920,  has  not  always  been 
thoroughly  understood.  It  proposes  to  treat  the  citizens  of  any  foreign  coun- 
try precisely  as  that  foreign  country  treats  our  citizens.  It  is  no  more  re- 
strictive than  the  golden  rule.  It  is  a  purely  defensive  provision.  ...  At  the 
same  time  the  United  States  must  be  prepared  to  meet  promptly  and  effec- 
tively any  unwelcome  developments  or  any  kind  of  competition  that  may  fall 
to  our  lot  with  the  purpose  of  safeguarding,  so  far  as  may  be  in  our  power, 
the  future  security  of  this  country." 

Non-intercourse  measures  and  general  embargoes  were  used 
during  the  French  Revolutionary  and  Napoleonic  wars  to  bring 
pressure  upon  the  belligerents  and  on  March  14,  1912,  an  act  was 

"T  Supra,  note  64.  Trading  with  the  Enemy  Act,  Oct.  6,  1917,  sees.  6, 
7,  40  Stat.  415-416;  Comp.  Stat.,  sec.  3ii5>^cc,  d. 

88  3   Stat.  432 ;   Moore,  Digest,  7 :    106. 

^9  39  Stat.  799,  sees.  805,  806;  Comp.  Stat'.,  sec.  8830qr;  Am.  Year  Book, 
1916,  pp.  68,  69,  73. 

^°  This  act  (Feb.  25,  1920,  sec.  i)  was  also  referred  to  in  a  note  to  the 
Netherlands  government  on  April  19,  1921,  protesting  against  exclusion  of 
American  interests  from  oil  development  in  the  Djambi  fields  in  the  Dutch 
East  Indies. 


302     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

passed  authorizing  the  President  to  embargo  arms  and  munitions 
bound  to  American  countries  in  a  condition  of  domestic  violence.'^^ 
In  all  of  these  acts  power  has  been  delegated  to  the  President  to 
decide  when  the  circumstances  contemplated  by  the  act  exist  and  by 
proclamation  to  put  it  into  efifect.  This  delegation  has  been  justified 
on  the  same  theory  as  delegation  in  reciprocity  acts,  that  it  is 
delegation  to  find  on  a  fact  and  not  to  determine  a  policy/^  The 
general  power  of  Congress  to  prohibit  importations  or  exportations 
has  been  sustained  under  the  commerce  clause/^  Congress  also  has 
power  under  this  clause  to  regulate  cables,  radio  and  telegraph  used 
in  foreign  commerce^*  but  in  this  field  the  President  has  been  held 
to  have  concurrent  powers  :  '^^ 

"The  President  has  charge  of  our  relations  with  foreign  powers.  It  is 
his  duty  to  see  that,  in  the  exchange  of  commodities  among  nations,  we  get 
as  much  as  we  give.  He  ought  not  to  stand  by  and  permit  a  cable  to  land  on 
our  shores  under  a  concession  from  a  foreign  power  which  does  not  permit 
our  cables  to  land  on  its  shores  and  enjoy  there  facilities  equal  to  those  ac- 
corded its  cable  here.  For  this  reason  President  Grant  insisted  on  the  first 
point  in  his  message  of  1875. 

"The  President  is  not  only  the  head  of  the  diplomatic  service,  but  com- 
mander in  chief  of  the  Army  and  Navy.  A  submarine  cable  is  of  inestimable 
service  to  the  Government  in  communicating  with  its  officers  in  the  diplomatic 
and  consular  service,  and  in  the  Army  and  Navy  when  abroad.  The  Presi- 
dent should,  therefore,  demand  that  the  Government  have  precedence  in  the 
use  of  the  line,  and  this  was  done  by  President  Grant  in  the  third  point  of 
his  message. 

"Treating  a  cable  simply  as  an  instrument  of  commerce,  it  is  the  duty 
of  the  President,  pending  legislation  by  Congress,  to  impose  such  restrictions 
as  will  forbid  unjust  discriminations,  prevent  monopolies,  promote  competi- 
tion, and  secure  reasonable  rates.  These  were  the  objects  of  the  second  and 
fourth  points  in  President  Grant's  message. 

"  The  President's  authority  to  control  the  landing  of  a  foreign  cable  does 
not  flow  from  his  right  to  permit  it  in  the  sense  of  granting  a  franchise,  but 

"1  Moore,  Digest,  7:  142-151  ;  37  Stat.  630;  Comp.  Stat.,  sec.  7677. 

■^2  The  Brig  Aurora,  7  Cranch  382,  388,  approved  in  Field  v.  Clark,  143 
U.  S.  649  (1892)  ;  supra,  sec.  60. 

T»U.  S.  V.  The  William,  28  Fed.  614  (1808). 

7*Pensacola  Tele.  Co.  v.  Western  Union,  96  U.  S.  i   (1878). 

■^Richards,  Acting  Att.  Gen.,  22  Op.  13;  Moore,  Digest,  2:  462.  An  act 
of  May  27,  1921,  requires  Presidential  license  for  the  landing  and  operation 
of  cables  connectmg  the  United  States  with  foreign  countries  and  authorizes 
the  President  to  withhold  or  revoke  licenses  in  pursuance  of  stated  objects 
similar  to  those  referred  to  in  this  opinion.  See  Wilson,  Am.  Jl.  Int.  Lav/, 
16:  78. 


WAR  AND  THE  USE  OF  FORCE.  303 

from  his  power  to  prohibit  it  should  he  deem  it  an  encroachment  on  our 
rights  or  prejudicial  to  our  interests.  ...  I  am  of  the  opinion,  therefore,  that 
the  President  has  the  power,  in  the  absence  of  legislative  enactment,  to  con- 
trol the  landing  of  foreign  cables." 

Prohibition  by  Congress  of  the  importation  of  particular  goods, 
such  as  lottery  tickets,  obscene  literature,  low  grade  teas,  prize 
fight  films,  etc.,  has  also  been  resorted  to  as  a  protective  measure  and 
has  been  sustained  by  the  courts.''*^  Similarly  the  XVIII  Amend- 
ment has  provided  for  the  prohibition  of  the  import  or  export  of 
alcoholic  beverages. 

Treaties  may  require  the  prohibition  of  commerce  in  certain 
articles  but  ordinarily  legislation  is  necessary  to  execute  such  pro- 
visions.'^^ Thus  the  commerce  in  opium  with  Corea  is  prohibited 
by  article  VII  of  the  treaty  of  1882  but  express  provision  is  made 
that  it  "  shall  be  enforced  by  appropriate  legislation  on  the  part  of 
the  United  States  and  of  Chosen." 

According  to  international  law,  as  applied  by  American  courts, 
trading  with  the  enemy  automatically  becomes  illegal  by  the  dec- 
laration of  war,  unless  licensed  by  authority  of  Congress  or  the 
President.  Congress  has,  however,  usually  passed  express  acts  pro- 
hibiting such  trade.'^ 

220,  Exclusion,  Expulsion  and  Internment  of  Aliens. 

Finally  as  a  defensive  measure  Congress  has  authorized  the 
exclusion  and  internment  of  alien  enemies  in  time  of  war  and  the 
exclusion  and  expulsion  of  aliens  of  defined  classes  and  nationalities 
in  time  of  peace.'^''     The  power  of  Congress  to  pass  such  acts  has 


T'Buttfield  V.  Stranahan,  192  U.  S.  47o  (1904);  Weber  v.  Freed,  239 
U.  S.  325. 

'^  Supra,  sec.  59 ;  infra,  sec.  256. 

78  Trading  with  the  Enemy  Act,  Oct.  6,  1917,  40  Stat.  411;  Comp.  Stat. 

79  Alien  enemies,  Rev.  Stat.,  4067,  amended  April  16,  1918;  Comp.  Stat'., 
sec.  7615 ;  Chinese  Exclusion  and  Expulsion,  May  6,  1882,  22  Stat.  58,  amended 
1884,  Comp.  Stat.,  sec.  4290,  and  act  Sept.  13,  1888,  25  Stat.  479,  Comp.  Stat., 
4313;  exclusion  and  expulsion  of  undesirable  aliens,  act  Feb.  5,  IQI?.  sees.  3. 
18,  19,  39  Stat.  875,  887,  889,  and  act  Oct.  16,  1918,  40  Stat.,  c.  186,  sec.  i, 
Comp.  Stat,  428914  amended  May  10  "and  June  5.  1920,  41  stat.  593,  1009.  An 
act  of  May  19,  1921,  excluded  all  aliens  beyond  3  per  cent,  of  the  number  from 
that  country  resident  in  the  United  States. 


304     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

been  sustained,  in  part  under  the  commerce  clause*"  and  in  part 
as  resulting  from  numerous  powers  in  foreign  relations  which  to- 
gether constituted  the  usual  powers  of  "  sovereign  and  independent 
states."  *^  These  laws  have  delegated  wide  powers  of  enforce- 
ment, often  with  a  minimum  of  judicial  review,  to  executive  officers 
but  this  delegation  has  been  sustained.*-  The  temporary  alien  act  of 
June  25,  1798,  provided:*^ 

"That  it  shall  be  lawful  for  the  President  of  the  United  States  at  any 
time  during  the  continuance  of  this  act  to  order  all  such  aliens  as  he  shall 
judge  dangerous  to  the  peace  and  safety  of  the  United  States,  or  shall  have 
reasonable  grounds  to  suspect  are  concerned  in  any  treasonable  or  secret 
machinations  against  the  government  thereof,  to  depart  out  of  the  territory 
of  the  United  States  within  such  time  as  shall  be  expressed  in  such  order." 

Hardly  less  broad  is  the  act  of  October  16,  1918,  providing  that: 

"Aliens  who  are  anarchists,  .  .  .  who  are  members  of  or  affiliated  with 
any  organization  that  entertains  a  belief  in,  teaches  or  advocates  the  over- 
throw by  force  or  violence  of  the  government  of  the  United  States  or  of  all 
forms  of  law,  or  that  entertains  or  teaches  disbelief  in  or  opposition  to  all 
organized  governments  .  .  .  shall  be  excluded  from  the  United  States,"  and 
if  such  alien  is  found  in  the  United  States,  he  "  shall  upon  the  warrant  of 
the  Secretary  of  Labor  be  taken  into  custody  and  deported." 

During  the  World  War  many  alien  enemies  were  interned  by 
order  of  the  President  under  authority  of  the  alien  enemy  act  of 
July  6,  1798,  as  amended  to  include  women  in  April,  1918.** 
221.  Power  to  Employ  Various  Methods  of  Coercion. 

Of  the  seven  types  of  measures  discussed,  the  President  can, 
in  pursuance  of  his  constitutional  duties,  authorize  diplomatic  pres- 
sure, or  display  of  force  on  national  territory  or  on  the  high  seas 
without  express  authority  of  Congress.  He  has,  in  pursuance  of 
such  duties,  authorized  the  occupation  of  foreign  territory  and  the 
capture  and  destruction  of  foreign  military  forces  without  express 
authority,  though  generally  Congress  has  ratified  his  act  by  later 
resolution.  It  would  seem  that  the  President  in  such  cases  ought 
to  await  an  authorizing  resolution  unless  an  immediate  necessity  de- 
mands promptness.     Finally  authority  to  seize  or  destroy  private 

8°  Head  Money  Cases,  112  U.  S.  580. 

"  Chinese  Exclusion  Cases,  130  U.  S.  581 ;  Pong  Yue  Ting  v.  U.  S.,  149 
U.  S.  398. 

82  U.  S.  V.  Ju  Toy,  198  U.  S.  253. 

83  I  Stat.  576.     Limited  to  two  years  by  its  own  terms. 
'*  Supra,  note  77. 


WAR  AND  THE  USE  OF  FORCE.  305 

property,  to  enforce  commercial  discriminations,  restrictions  or  pro- 
hibitions and  to  exclude,  expel  or  intern  aliens  must  be  given  by  act 
of  Congress,  treaty  or  international  law,  but  much  discretion  may 
be  delegated  the  President.  The  existence  of  war,  whether  by 
declaration  of  Congress  or  recognition  by  the  President,  ex  propria 
vigore,  authorizes  the  President,  as  Commander-in-Chief,  to  enforce 
such  of  these  measures  of  coercion  as  are  permitted  by  the  inter- 
national law  of  war,  and  Congress  cannot  interfere  with  him  in  the 
direction  of  military  and  naval  forces : 

"  Congress,"  said  the  Supreme  Court,  "  has  the  power  not  only  to  raise 
and  support  and  govern  armies  but  to  declare  war.  It  has,  therefore,  the 
power  to  provide  by  law  for  carrying  on  war.  This  power  necessarily  ex- 
tends to  all  legislation  essential  to  the  prosecution  of  war  with  vigor  and 
success,  except  such  as  interferes  with  the  command  of  forces  and  the  con- 
duct of  campaigns.  That  power  and  duty  belong  to  the  President  as  com- 
mander-in-chief. Both  these  powers  are  derived  from  the  Constitution,  but 
neither  is  defined  by  that  instrument.  Their  extent  must  be  determined  by 
their  nature,  and  by  the  principles  of  our  institutions.  The  power  to  make 
the  necessary  laws  is  in  Congress,  the  power  to  execute  in  the  President. 
Both  powers  imply  many  subordinate  and  auxiliary  powers.  Each  includes 
all  authority  essential  to  its  due  exercise.  But  neither  can  the  President,  in 
war  more  than  in  peace,  intrude  upon  the  proper  authority  of  Congress,  nor 
Congress  upon  the  proper  authority  of  the  President.  Both  are  servants  of 
the  people,  whose  will  is  expressed  in  the  fundamental  law.  Congress  can 
not  direct  the  conduct  of  campaigns."  ^** 

222.  Purposes  for  Which  the  President  May  Employ  Force  under 
the  Constitution. 
However,  we  cannot  distinguish  the  respective  powers  of  the 
President  and  Congress  merely  by  considering  the  method  of 
coercion.  The  purposes  or  ends  in  view  are  even  more  important. 
The  Constitution  requires  the  President  to  "  take  care  that  the  laws 
be  faithfully  executed."^^  Though  this  imposes  a  responsibility  and 
is  not  a  grant  of  power,  yet  it  indicates  certain  purposes  for  which 
the  President  must  use  the  constitutional  powers  elsewhere  granted. 
What  does  the  term  "laws"  embrace?  In  the  Neagle  case,  the 
court  held  that  it  should  be  broadly  interpreted.^* 

84a  £;r  parte  Milligan,  4  Wall.  2  (1866).     See  also  Willoughby,  op.  cit.,  2: 
1207;  Taft,  op.  cit.,  pp  94-99;  Wright,  Cot.  Law  Rev.,  20:  134. 
«»U.  S.  Constitution,  II,  sec.  3;  supra,  sec.  93- 
8«7n  re  Neagle,  135  U.  S.  i ;  Willoughby,  op.  cit.,  p.  ii35- 


306     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

"Is  this  duty  limited  to  the  enforcement  of  Acts  of  Congress  or  of 
treaties  of  the  United  States  according  to  their  express  terms,  or  does  it 
include  the  rights,  duties  and  obligations  growing  out  of  the  Constitution 
itself,  our  international  relations  and  the  protection  implied  by  the  nature  of 
the  government  under  the  Constitution?" 

The  Constitution  guarantees  the  "  privileges  and  immunities  of 
citizens  of  the  United  States  "  and  these  were  held  in  the  Slaughter 
House  cases  to  include  the  right  to  protection  abroad.*'^  Conse- 
quently the  President's  duty  to  execute  the  laws  includes  a  duty  to 
protect  citizens  abroad  and  in  pursuance  of  this  duty  he  may  utilize 
his  powers  as  Commander-in-Chief.  Thus  the  court  justified  the 
President  in  authorizing  the  bombardment  of  Greytown,  Nicaragua, 
in  1854:^^ 

"As  respects  the  interposition  of  the  Executive  abroad,  for  the  protection 
of  the  lives  or  property  of  the  citizen,  the  duty  must,  of  necessity,  rest  in 
the  discretion  of  the  President.  Acts  of  lawless  violence  to  the  citizen  or 
his  property  cannot  be  anticipated  and  provided  for ;  and  the  protection,  to 
be  effectual  or  of  any  avail,  may,  not  unfrequently,  require  the  most  prompt 
and  decided  action.  Under  our  system  of  Government,  the  citizen  abroad  is 
as  much  entitled  to  protection  as  the  citizen  at  home.  The  great  object  and 
duty  of  Government  is  the  protection  of  the  lives,  liberty,  and  property  of 
the  people  composing  it,  whether  abroad  or  at  home;  and  any  Government 
failing  in  the  accomplishment  of  the  object,  or  the  performance  of  the  duty, 
is  not  worth  the  preserving." 

In  the  Neagle  case  the  Supreme  Court  referred  to  and  endorsed 
executive  action  in  1853  i^  protecting  Martin  Koszta,  a  Hungarian 
revolutionist  who  had  not  completed  his  American  naturalization. 
Captain  Ingraham,  in  command  of  the  American  sloop-of-war  St. 
Louis  arrived  in  Smyrna  as  Koszta  was  being  abducted,  "  de- 
manded his  surrender  to  him,  and  was  compelled  to  train  his  guns 
upon  the  Austrian  vessel  before  his  demands  were  complied  with." 
The  court  notes  that  Secretary  of  State  Alarcy's  defense  of  this 
action  and  insistence  upon  the  liberation  of  Koszta  who  had  been 

'^U.  S.  Constitution,  Amendment  XIV;  Slaughter  House  Cases,  16 
Wall.  36. 

^^Durand  v.  Hollins,  4  Blatch  451,  454;  Corwin,  op.  cit.,  p.  144.  J.  B. 
Moore  notes  that  President  Pierce  and  Secretary  Marcy  justified  this  action 
on  the  ground  that  "  Greytown  was  a  community  claiming  to  exist  outside 
the  bounds  of  any  recognized  state  or  political  entity."  (Proc.  Am.  Phil. 
Soc,  Minutes,  60:  xvii.)  This,  however,  does  not  apply  to  many  other  in- 
stances in  which  force  has  been  used  abroad  under  authority  of  the  Presi- 
dent and  in  this  case  the  court  rests  the  power  on  broader  grounds. 


WAR  AND  THE  USE  OF  FORCE.  307 

placed  in  charge  of  the  French  consul  at  Smyrna  "met  the  ap- 
proval of  the  country  and  Congress,  who  voted  a  gold  medal  to  Cap- 
tain Ingraham  for  his  conduct  of  the  affair."  Yet  says  the  court, 
"upon  what  act  of  Congress  then  existing  can  any  one  lay  his 
finger  in  support  of  the  action  of  the  government  in  this  matter."  *• 
In  view  of  these  incidents  and  judicial  endorsements,  we  may  accept 
Borchard's  statement ;  with  the  sole  qualification  that  "  the  manner  " 
must  not  amount  to  a  making  of  war :  "^ 

"  Inasmuch  as  the  Constitution  vests  in  Congress  authority  '  to  declare 
war '  and  does  not  empower  Congress  to  direct  the  President  to  perform  his 
constitutional  duties  of  protecting  American  citizens  on  foreign  soil,  it  is 
believed  that  the  Executive  has  unlimited  authority  to  use  the  armed  forces 
of  the  United  States  for  protective  purposes  abroad  in  any  manner  and  on 
any  occasion  he  considers  expedient." 

The  Constitution  also  guarantees  the  States  a  Republican  form 

of  government  and  protection  against  invasion.^^     Furthermore  the 

right  of  national  self-defense  is  recognized  at  international  law  and 

the  corresponding  duty  of  the  government  has  been  asserted  by  the 

Supreme  Court :  ^^  \ 

"  To  preserve  its  independence  and  give  security  against  foreign  aggres-    J 
sion  and  encroachment  is  the  highest  duty  of  every  nation,  and  to  attain  these  / 
ends  nearly  all  other  considerations  are  to  be  subordinated." 

Thus,  if  he  considers  such  action  essential  for  the  enforcement  of 
acts  of  Congress  and  treaties  and  for  the  protection  of  the  citizens 
and  territory  of  the  United  States,  the  President  is  obliged  by  the 
Constitution  itself  to  use  his  power  as  commander-in-chief  to  direct 
the  forces  abroad,  and  this  duty  resting  on  the  Constitution  itself  can- 
not be  taken  away  by  act  of  Congress.     Thus  says  President  Taft :  ®^ 


89 /w  re  Neagle,  135  U.  S.  i. 

90  Borchard,  op.  cit.,  p.  452.  See  also  Root,  address  in  Senate,  Aug.  14, 
1912,  Cotig.  Rec,  48:  10929;  Military  and  Colonial  Policy  of  the  United 
States,  1916,  p.  157. 

»i  U.  S.  Constitution,  Art.  IV,  sec.  4. 

02  Chinese  Exclusion  Cases,  130  U.  S.  581   (1889). 

»3Taft,  op.  cit.,  pp.  12S-129.  See  also  Wright,  Col.  Law  Rev.,  20:  135- 
136,  and  Am.  Jl.  Int.  Law,  12:  77;  supra,  sees.  125,  126,  151.  By  reduction 
of  the  army  and  navy  or  refusal  of  supplies.  Congress  might  seriously 
impair  the  de  facto  power  of  the  President  to  perform  these  duties,  but  it  can 
not  limit  his  legal  power  as  Commander-in-Chief  to  employ  the  means  at  his 
disposal  for  these  purposes.     See  Ex  parte  Milligan,  4  Wall.  2,  supra,  sec.  221. 


308     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

"  The  President  is  made  Commander-in-Chief  of  the  Army  and  Navy  by 
the  Constitution,  evidently  for  the  purpose  of  enabhng  him  to  defend  the 
country  against  invasion,  to  suppress  insurrection  and  to  take  care  that  the 
laws  be  faithfully  executed.  If  Congress  were  to  attempt  to  prevent  his  use 
of  the  army  for  any  of  these  purposes,  the  action  would  be  void." 

222,.  Purposes  for  Which  the  President  May  Employ  Force  under 
Statute. 

Aside  from  the  purposes  defined  by  the  Constitution  itself,  for 
which  the  President  may  utilize  the  forces,  other  purposes  have 
been  defined  by  act  of  Congress.  It  is  true,  the  general  delegations 
of  power  to  use  the  militia  and  the  similar  delegation  to  use  the 
army  and  navy  "  to  execute  the  laws  of  the  union,  suppress  insur- 
rection and  repel  invasions  "  have  been  given  an  interpretation  con- 
fining such  use  to  the  territory.^*  Laws  in  this  phrase  has  been 
held  to  mean  laws  of  territorial  application  and  says  Pomeroy :  ®^ 

"  Insurrection  and  invasion  must  be  internal.  We  do  not  repel  an  in- 
vasion by  attacking  the  invading  nation  upon  its  own  soil.  Still  there  can  be 
no  question  that  the  militia  may  be  called  out  before  the  invaders  set  foot 
upon  our  territory.  It  is  a  fair  construction  of  language  to  say  that  one 
means  of  'repelling'  an  invasion  is  to  have  a  force  ready  to  receive  the 
threatened  invaders  when  they  shall  arrive." 

Attorney-General  Wickersham,  however,  makes  the  qualification :  ®^ 

"If  the  militia  were  called  into  the  service  of  the  General  government 
to  repel  an  invasion,  it  would  not  be  necessary  to  discontinue  their  use  at  the 
boundary  line,  but  they  might  (within  certain  limits,  at  least)  pursue  and 
capture  the  invading  force,  even  beyond  that  line.  .  .  .  This  may  well  be  held 
to  be  within  the  meaning  of  the  term  '  to  repel  invasion.'  " 

The  expatriation  act  of  July  2y,  1868,  however,  authorizes  the 
President  to  demand  the  release  of  American  citizens  unjustly  de- 
prived of  liberty  and :  ®^ 

»*Act  of  Jan.  21,  1913  (Dick  Act),  2,2  Stat,  776,  sec.  4;  35  Stat.  400; 
38  Stat.  284,  based  on  Acts  of  May  2.  1794,  and  Feb.  28,  1795,  i  Stat.  264,  424. 
Judge  Ad.  Gen.  Davis  held  in  1908  that  the  term  "  laws  "  might  apply  to  any 
congressional  resolution  of  extraterritorial  effect  {Cong.  Rec,  42:  6943),  but 
this  was  not  sustained  by  the  Attorney  General,  infra,  note  96. 

»"  Pomeroy,  Constitutional  Law,  9th  ed.,  p.  387. 

^8  Wickersham,  Att.  Gen.,  29  Op.  322  (1912). 

»^  Rev.  Stat.,  sec.  2001 ;  Comp.  Stat,  sec.  3957. 


WAR  AND  THE  USE  OF  FORCE.  309 

"If  unreasonably  delayed  or  refused,  the  President  shall  use  such  means, 
not  amounting  to  acts  of  war,  as  he  may  think  necessary  and  proper  to  obtain 
or  effectuate  the  release." 

Aside  from  such  general  acts,'®  Congress  may  authorize  a  broad 
use  of  force  by  acts  or  resolutions  applying  to  particular  incidents 
and  by  declarations  of  war.'® 

According  to  Justice  Story  in  Martin  v.  Mott,  it  belongs  to  the 
President  himself  to  interpret  the  exigencies  in  which  a  use  of  force 
is  justifiable :  ^*'° 

"  He  is  necessarily  constituted  the  judge  of  the  existence  of  the  exigency 
in  the  first  instance  and  is  bound  to  act  according  to  his  belief  of  the  facts. 
.  .  .  Whenever  a  statute  gives  a  discretionary  power  to  any  person,  to  be 
exercised  by  him  upon  his  own  opinion  of  certain  facts,  it  is  a  sound  rule  of 
construction  that  the  statute  constitutes  him  the  sole  and  exclusive  judge  of 
the  existence  of  those  facts." 

This  case  applied  to  the  act  of  1795  delegating  the  President  power 
to  call  forth  the  militia,  but  the  same  principle  would  seem  valid 
whatever  the  source  of  his  authority,  whether  statute,  treaty  or 
the  Constitution  itself. 

224.  Conclusion. 

Thus  in  practice  the  President  has  an  exceedingly  broad  discre- 
tion to  authorize  the  use  of  the  forces.  Under  the  Constitution 
he  can  use  the  military  and  naval  forces  to  defend  the  territory  and 
to  protect  American  citizens  abroad  and  on  the  high  seas.  The  use 
of  force  to  protect  inchoate  citizens,  such  as  Martin  Koszta,  and 
inchoate  territority  such  as  San  Domingo  in  1871  is  more  question- 
able.^'^^  For  the  meeting  of  responsibilities  under  international 
law  and  treaty  the  President  likewise  has  authority  to  use  the  army 
and  navy  on  the  high  seas  and  in  foreign  territory."^  To  meet 
responsibilities  under  inchoate  international  law,  such  as  the  Monroe 

»8For  legislation  authorizing  the  use  of  force  to  meet  international  re- 
sponsibilities, see  Chap.  XH,  A. 

89  Moore,  Digest,  7:  109,  155;  Wright,  Am.  Jl.  Int.  Law,  12:  77. 

100  Martin  v.  Mott,  12  Wheat.  19. 

101  Corwin,  op.  cit.,  pp.  142,  158,  and  debate  there  quoted  from  Cong. 
Globe,  42  Cong.,  ist  sess.,  pt.  i,  p.  294. 

'^02  Supra,  Chap.  XH,  A. 


310     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

Doctrine,  the  power,  though  often  exercised,  is  more  questionable,^"' 
and  for  the  use  of  forces  within  the  territory,  even  to  meet  inter- 
national responsibilities,  statutory  authorization  is  generally  advis- 
able, though  apparently  not  strictly  necessary.^°*  Finally,  for  the 
purpose  of  bringing  pressure  upon  foreign  governments  for  polit- 
ical objects,  it  is  doubtful  whether  the  President  has  constitutional 
power  to  use  force,  although  he  may  bring  diplomatic  pressure.  For 
political  intervention,  authorization  by  special  resolution  of  Congress 
seems  proper  and  has  been  the  usual  practice. 


i°3  Corwin,  op.  cit.,  p.  162, 

10*  Supra,  sec.  126.  /     __  v 


CHAPTER  XVII. 

The  Power  to  Establish  Instrumentalities  for  Conducting 
Foreign  Relations. 

A.     Constitutional  Principles. 

225.  The  Pozver  of  Congress  to  Create  Offices  and  Agencies. 

The  establishment  of  an  instrumentahty  for  conducting  pubHc 
afifairs  involves  two  processes,  (i)  the  creation  of  an  office  or 
agency,  by  definition  of  its  functions,  procedure  and  privileges,  (2) 
the  nomination,  appointment  and  commissioning  of  a  person  or  per- 
sons to  fill  such  office  or  agency.  Since  Chief  Justice  Marshall's 
decision  in  McCulloch  v.  Maryland  there  has  been  no  question  but 
that  Congress  has  power  to  create  instrumentalities  "  necessary  and 
proper  "  to  give  full  effect  to  the  powers  delegated  to  any  of  the 
departments  of  the  government.^ 

"  Let  the  end  be  legitimate,  let  it  be  within  the  scope  of  the  Constitution, 
and  all  means  which  are  appropriate,  which  are  plainly  adapted  to  that  end, 
which  are  not  prohibited,  but  consist  with  the  letter  and  spirit  of  the  Consti- 
tution, are  constitutional." 

This  power  extends  not  only  to  the  creation  of  corporations  but 
also  to  the  organization  of  the  executive  and  judicial  departments 
of  government.  Congress  has  exclusive  power  to  create  "offices" 
under  the  United  States  aside  from  those  established  by  the  Con- 
stitution itself,  "  to  raise  and  support  armies  "  and  "  to  provide  and 
maintain  a  navy."  ^  It  also  has  power,  concurrent  in  part  with  that 
of  the  President,  "  to  make  rules  for  the  government  and  regulation 
of  the  land  and  naval  forces  " ;  ^  and  power,  concurrent  in  part  with 
that  of  the  states,  though  supreme  when  exercised,  to  organize  the 

1  McCulloch  V.  Md.,  4  Wheat.  316. 

2U.  S.  Constitution,  Art.  II,  sec.  2,  cl.  2;  I,  sec.  8,  cl.  12,  13. 
3/fctrf.,  I,  sec,  8,  cl.  14;  Ex  parte  Milligan,  4  Wall.  2. 

311 


312     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

militia.*  Thus  Congress  has  adequate  power  to  create  any  instru- 
mentality which  may  be  "  necessary  and  proper  "  for  the  exercise 
of  executive  power. 

Hardly  less  complete  is  its  power  to  create  courts.  It  may  "  con- 
stitute tribunals  inferior  to  the  Supreme  Court "  for  exercising  the 
judicial  power  of  the  United  States  outlined  in  Article  III  of  the 
Constitution  and  may  regulate  their  jurisdiction  and  the  appellate 
jurisdiction  of  the  Supreme  Court.^  But  it  may  also  organize  courts 
in  the  territories*^  or  abroad^  and  administrative  courts  in  the  United 
States  which  hear  and  decide  cases  but  do  not  exercise  the  judicial 
power  described  in  Article  III.^ 

Practically  the  only  legal  limitation  upon  the  power  of  Congress 
to  create  and  organize  instrumentalities  not  defined  by  the  Consti- 
tution itself,  for  the  exercise  of  national  powers,  is  (i)  that  it  may 
not  itself  exercise  judicial  or  executive  power,  (2)  that  it  may  not 
delegate  legislative  power,  (3)  that  it  may  not  vest  non-judicial 
power  in  the  federal  courts,  though  it  may  in  administrative  courts, 
and  (4)  that  it  may  not  burden  state  officers,  though  it  may  vest 
in  them  powers  exercisable  at  discretion.^ 

226.  The  Power  to  Create  Offices  and  Agencies  by  Treaty. 

The  treaty-making  power  may  provide  instrumentalities  conven- 
ient for  carrying  out  powers  in  the  legitimate  scope  of  treaties, 
such  as  diplomatic  and  consular  offices,  consular  courts  for  exer- 
cising American  jurisdiction  abroad  or  foreign  jurisdiction  in  the 
United  States,  and  international  courts,  councils,  and  administrative 
unions.  Doubtless  in  many  cases  Congress  would  have  to  create 
and  provide  for  the  necessary  "  offices "  under  the  United  States 
before  such  treaty-established  organs  could  become  effective,  but 
such  a  need  of  congressional  cooperation  is  not  a  legal  limitation 

*  Ibid.,  I,  sec.  8,  cl.  16;  Houston  v.  Moore,  5  Wheat,  i. 
'^  Ibid.,  I,  sec.  8,  cl.  9;  III,  sec.  2,  cl.  2;  Ex  parte  McCardle,  7  Wall.  506. 
«Am.  Ins.  Co.  v.  Canter,  i  Pet.  511. 
^/n  re  Ross,  140  U.  S.  453. 

8  Gordon  v.  U.  S.,  2  Wall.  561 ;  Willoughby,  op.  cit.,  p.  1277. 
»  Supra,  sec.  60 ;  Gordon  v.  U.  S.,  2  Wall.  561 ;  Ky.  v.  Dennison,  24  How. 
66;  Willoughby,  Am.  Constitutional  System,  p.  123. 


INSTRUMENTALITIES  FOR  FOREIGN  RELATIONS.         313 

upon  the  treaty  power.  Legally  the  treaty  power  seems  to  be  lim- 
ited in  its  power  to  create  and  organize  instrumentalities  not  defined 
by  the  Constitution  itself,  only  by  the  condition  that  the  instrumen- 
tality be  bona  fide  of  international  interest  and  by  the  conditions 
stated  above  applicable  to  the  power  of  Congress.^" 

227.  The  Power  of  the  President  to  Create  Offices  and  Agencies. 

The  President  and  the  courts  are  not  specifically  endowed  with 
power  to  create  new  instrumentalities  for  exercising  national  powers. 
In  the  Neagle  case,  the  Supreme  Court  went  far  toward  recognizing 
a  power  in  the  President  to  delegate  executive  authority  to  persons 
not  occupying  a  congressionally  established  "  office."  This,  how- 
ever, should  probably  be  interpreted  no  farther  than  a  recognition 
that  the  President  may  create  subordinate  agencies,  not  strictly 
"  offices "  necessary  for  performing  executive  functions.^^  The 
President's  authorization  of  personal  "  agents  "  for  conducting  diplo- 
matic negotiations  and  representing  the  United  States  in  interna- 
tional conferences  is  justified  under  the  same  inherent  power.  Leg- 
islative bodies  and  courts  seem  to  have  a  similar  inherent  power  to 
create  subordinate  positions  by  merely  making  appointments  thereto. 
In  most  cases  the  nature  and  necessity  of  such  subordinate  positions 
has  been  estabUshed  by  practice  and  tradition,  the  issue  being  raised 
rather  as  to  the  inherent  power  to  make  appointments  thereto,  than 
as  to  the  inherent  power  to  create  the  position.^^ 

In  addition  to  such  essential  subordinate  positions,  the  President, 
as  representative  authority  of  the  nation,  has  recognized  and  applied 
international  law  to  determine  the  grades  of  "  ambassadors,  public 
ministers  and  consuls"  to  be  sent  by  the  United  States.  These 
offices  being  established  by  the  Constitution  itself,  congressional 
action  is  not  necessary.^^  As  Commander-in-Chief,  the  President 
has  exercised  much  discretion  in  organizing  the  Army  and  Navy. 
He  may  provide  administrative  agencies  and  courts  for  governing 

10 /n  re  Ross,  140  U.  S.  453- 

11 /n  re  Neagle,  135  U.  S.  i ;  Willoughby,  Constitutional  Law,  1155. 

^^  Infra,  sec.  228  (3). 

"^^  Infra,  sec.  236. 


314     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

territory  under  military  occupation,  even  after  conclusion  of  war 
and  annexation  of  the  territory/*  but  he  cannot  vest  such  courts 
with  prize  jurisdiction.^^  This  power  is,  of  course,  superseded  by 
acts  of  Congress  organizing  the  territory. 

228.  The  Appointment  of  Officers  and  Agents. 

Quite  different  is  the  situation  with  reference  to  the  filling  of 
such  ofifices  or  agencies  once  created.  It  is  often  said  that  the  ap- 
pointing power  is  essentially  executive  in  character,  and  doubtless  con- 
stitutional understandings  have  tended  toward  presidential  dominance 
in  this  field,  but  as  a  matter  of  federal  constitutional  law,  it  seems 
that  the  President  has  no  more  inherent  power  in  this  regard  than 
do  the  other  departments.  All  power  to  make  appointments  seems 
to  be  derivable  (i)  from  express  delegation  by  the  Constitution, 
(2)  from  act  of  Congress,  (3)  from  inherent  powers  of  the  depart- 
ments under  the  principle  of  separation  of  powers.  Strictly  speak- 
ing, the  making  of  an  appointment  involves  three  processes :  nomi- 
nation, appointment  and  commissioning.  The  first  and  last  have  for 
the  most  part  been  vested  in  the  President  alone,  and  undoubtedly 
the  sole  power  of  initiation  and  absolute  veto  upon  appointments 
thus  implied  makes  his  will  paramount  in  appointments.  It  should 
be  noticed  that  the  courts  have  held  that  the  granting  of  a  commis- 
sion is  a  ministerial  duty  after  the  Appointment  has  been  made  but 
they  admit  there  is  no  power  to  compel  the  President  to  sign  a 
commission  (except  threat  of  impeachment)  and  without  the  com- 
mission no  person  is  an  "officer"  with  legal  powers." 

I.  The  Constitution  provides  that  the  President  "  shall  nominate, 
and  by  and  with  the  advice  and  consent  of  the  Senate,  shall  appoint 
Ambassadors,  other  public  Ministers  and  Consuls,  Judges  of  the 


1*  Cross  V.  Harrison,  16  How.  164;  Santiago  v.  Nogueras,  214  U.  S.  260. 

1'  Jecker  v.  Montgomery,  13  How.  498,  but  Congress  may  retroactively 
confer  such  jurisdiction  on  presidential  courts.     The  Grapeshot,  9  Wall.  129. 

16  Marbury  v.  Madison,  i  Cranch  137.  If  a  commission  has  been  signed 
and  is  in  the  hands  of  an  officer,  other  than  the  President,  its  delivery  may 
be  mandamused,  ibid. 


INSTRUMENTALITIES  FOR  FOREIGN  RELATIONS.         315 

Supreme  Court,  and  all  other  officers  of  the  United  States,  whose 
appointments  are  not  herein  otherwise  provided  for,  and  which  shall 
be  established  by  law."  "  The  President  shall  have  power  to  fill 
up  all  vacancies  that  may  happen  during  the  recess  of  the  Senate, 
by  granting  commissions  which  shall  expire  at  the  end  of  their  next 
session."  To  the  states  is  "  reserved  .  .  .  respectively,  the  appoint- 
ment of  the  officers"  of  the  militia  even  when  called  forth  into  na- 
tional service. ^^ 

2.  "  But  the  Congress  may  by  law  vest  the  appointment  of  such 
inferior  officers,  as  they  think  proper,  in  the  President  alone,  in  the 
courts  of  law,  or  in  the  heads  of  departments."  ^® 

3.  Finally,  an  inherent  power  of  appointment  exists  in  each  of  the 
departments  as  an  implication  of  the  doctrine  of  separation  of 
powers.  "  If  any  one  of  the  departments,"  says  Goodnow,  "  is  to 
be  expected  to  be  independent  of  the  others,  it  must  have  the  power 
to  appoint  its  subordinates.  The  legislature  may  thus  appoint  all  its 
subordinate  officers,  while  courts  may  appoint  such  officers  as  criers 
and  others  who  are  necessary  in  order  that  the  courts  may  perform 
their  duties  properly."  "  It  may  be  added  that  the  President  exer- 
cises such  an  inherent  power  in  appointing  personal  agents  for  con- 
ducting diplomatic  intercourse  without  congressional  authorization 
and  without  consent  of  the  Senate,  a  practice  which  the  Senate  has 
often  objected  to  but  never  with  success.^"  It  may  also  be  noticed 
that  in  the  National  Government  Congress  has  in  fact  conferred 
power  on  the  courts  to  appoint  such  essential  subordinates  as  clerks, 
criers,  reporters,  etc.,  under  the  constitutional  clause  referred  to,  but 
doubtless  in  the  absence  of  such  statutes  the  courts  could  make  such 
appointments  as  they  have  done  in  the  states. 

229.  Limitations  upon  the  Appointing  Power. 

Apparently  the  only  constitutional  limitation  upon  the  appoint- 
ing power  is  that  which  provides :  ^^ 


1^  U.  S.  Constitution,  II,  sec.  2,  cl.  2,  3 ;  I,  sec.  8,  cl.  16. 

"^^  Ibid.,  II,  sec.  2,  cl.  2. 

1^  Goodnow,  op.  cit.,  pp.  37-38. 

'^'^  Infra,  sees.  238-240. 


316     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS, 

"  No  Senator  or  Representative  shall,  during  the  time  for  which  he  was 
elected,  be  appointed  to  any  civil  office  under  the  authority  of  the  United 
States  which  shall  have  been  created  or  the  emoluments  whereof  shall  have 
been  increased  during  such  time ;  and  no  person  holding  any  office  under  the 
United  States  shall  be  a  member  of  either  House  during  his  continuance  in 
office." 

It  should  be  noticed,  however,  that  the  incompatibility  of  congres- 
sional membership  with  the  holding  of  an  "  office  "  does  not  apply 
to  service  as  an  agent.  Senators  have  often  been  sent  on  special 
diplomatic  missions,  under  presidential  appointment.  The  occu- 
pancy of  a  judicial  office  is  not  incompatible  with  the  holding  of 
another  office.  John  Jay  and  Oliver  Ellsworth  were  each  sent  on 
diplomatic  missions  by  appointment  of  the  President,  consented  to 
by  the  Senate,  while  justices  of  the  Supreme  Court,  and  on  other 
occasions  justices  have  been  appointed  by  the  President  to  serve  on 
courts  of  arbitration.-^  The  Senate  held  that  Gallatin's  position 
as  Secretary  of  the  Treasury  was  incompatible  with  his  appoint- 
ment as  commissioner  to  conclude  the  Peace  Treaty  of  Ghent  and 
forced  his  withdrawal  from  the  former  position.  The  grounds  of 
this  incompatibility,  however,  were  never  precisely  stated  and  do  not 
seem  to  be  sustained  by  analogy  or  subsequent  practice.  Thus 
while  Civil  Governor  of  the  Philippines,  Mr.  Taft  was  appointed  on 
a  special  mission  to  the  Pope,  and  while  Secretary  of  State,  Mr. 
Lansing  was  appointed  upon  the  mission  to  conclude  the  Peace 
Treaty  of  Versailles.  In  neither  of  these  cases,  however,  was  the 
appointment  to  a  regular  office,  nor  was  it  submitted  to  the  Senate.^^ 

230.  Powers  of  Removing  and  of  Directing  Officers  and  Agents. 

In  the  United  States  Government,  though  not  in  the  states,  the  re- 
moval power  seems  to  belong  inherently  to  the  Chief  Executive.  This 
was  decided  in  the  debate  of  the  first  Congress  on  a  bill  for  organ- 
izing the  Department  of  State  and  has  been  consistently  admitted 
since,  with  exception  of  the  period  of  the  tenure  of  office  acts,  1867- 


21  U.  S.  Constitution,  I,  sec.  6,  cl.  2. 
-2  Corwin,  op.  cit.,  p.  66 ;  supra,  sec.  176. 

23  Moore,  Digest,  4:  447.     For  facsimile  reproduction  of   Mr.  Lansing's 
commission,  see  Lansing,  The  Peace  Negotiations,  1921,  p.  28. 


INSTRUMENTALITIES  FOR  FOREIGN  RELATIONS.         317 

1887.  These  acts,  originating  in  political  hostility  to  President 
Johnson,  were  virtually  held  to  have  been  unconstitutional  by  the 
Supreme  Court  after  their  repeal.^* 

Through  the  power  of  removal  the  President  has  the  power  to 
direct  administrative  officials  with  no  practical  restraint,  as  was  illus- 
trated by  President  Jackson's  action  in  the  bank  controversy.  By 
successive  removals  of  Secretaries  of  the  Treasury,  he  was  able  to 
direct  the  removal  of  government  deposits  from  the  Second  United 
States  Bank,  although  by  law  discretion  in  this  matter  belonged  to 
the  Secretary.^^ 

"  I  think,"  wrote  Attorney  General  Gushing  in  1855,  "  the  general  rule  to 
be  .  .  .  that  the  head  of  department  is  subject  to  the  direction  of  the 
President.  (This  was  said  in  relation  to  duties  imposed  by  statute  upon  a 
head  of  a  department.)  I  hold  that  no  head  of  department  can  lawfully 
perform  an  official  act  against  the  will  of  che  President  and  that  will  is,  by 
the  Constitution,  to  govern  the  performance  of  all  such  acts."  26 

As  Commander-in-Chief,  the  President  has  complete  power  of  di- 
recting the  military  and  naval  services  of  the  national  government.^^ 

B.     Application  of  Principles  to  Foreign  Affairs. 

231.  The  Types  of  Agencies  Conducting  Foreign  Relations. 

The  instruments  used  for  conducting  foreign  relations  may  be 
classified  as  (i)  national,  military,  naval,  administrative,  and  judi- 


24  Parsons  v.  U.  S.,  167  U.  S.  324.  The  power  to  remove  has  usually 
been  considered  an  implication  of  the  power  to  appoint.  (Ex  parte  Hennen, 
13  Pet.  230,  1839;  U.  S.  V.  Perkins,  116  U.  S.  143;  Shurtleflf  v.  U.  S.,  189 
U.  S.  311;  President  Wilson's  veto  of  National  Budget  Bill,  June  4.  1920.) 
This  derivation  of  the  power,  however,  would  seem  to  leave  Congress  dis- 
cretion to  determine  the  authority  to  remove  "inferior  officers"  for  whose 
appointment  they  may  provide,  a  discretion  it  has  never  successfully  exercised 
as  to  executive  and  administrative  officers  and  which  is  inconsistent  with  the 
recognized  practice  whereby  the  President  alone  removes,  even  when  the 
appointing  power  is  the  President  acting  with  advice  and  consent  of  the 
Senate.     See  Powell,  National  Municipal  Review,  9:  53^545,  and  supra,  sees. 

52,  53- 

25  Goodnow,  op.  cit.,  pp.  77-82. 

26  Gushing,  Att  Gen.,  7  Op.  453,  470. 

27  Ex  parte  Milligan,  4  Wall.  2,  supra,  sec.  221, 


318     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

cial  officers;  (2)  national  and  international  political  officers  and 
agents;  (3)  international  administrative  and  judicial  agencies. 
Officers  of  the  first  kind  are  clearly  national.  They  are  the  product 
of  national  law  alone  and  are  accountable  to  national  law  alone. 
Agencies  of  the  last  kind  are  just  as  clearly  international.  They 
can  be  founded  only  by  the  agreement  of  nations,  and  can  exercise 
authority  only  in  matters,  as  to  which  nations  have  agreed  to  be 
bound  by  them.  Officers  and  agencies  of  the  second  class,  how- 
ever, occupy  a  twilight  zone.  We  may  distinguish  the  offices  in 
the  group  which  are  primarily  national  from  the  agencies  primarily 
international.  Thus  a  diplomatic  officer  or  consul,  though  enjoying 
certain  rights,  privileges  and  powers  under  international  law,  is 
primarily  a  national  officer,  bound  primarily  by  his  national  law 
and  policy.  He  can  act  only  under  express  instructions.  He  is  in 
fact  a  delegate.  On  the  other  hand,  the  representative  of  a  nation 
sitting  in  a  general  congress  or  conference,  such  as  the  Hague  or 
Algeciras  conferences,  the  Berlin  or  Versailles  congresses  or  the 
Assembly  of  the  League  of  Nations,  though  theoretically  occupying 
a  status  similar  to  that  of  a  diplomatic  officer,'®  bound  by  his  na- 
tional laws  and  subject  to  instructions,  tends  to  be  in  fact  a  repre- 
sentative rather  than  a  delegate.  His  judgments  tend  to  be  founded 
upon  an  international  point  of  view,  developed  by  the  discussions 
of  the  conference  itself,  rather  than  by  the  instructions  of  his  home 
state.  In  the  Senate  discussion  upon  the  character  of  the  repre- 
sentatives to  the  Panama  congress  in  1825,  Senator  Benton  recog- 
nized this  distinction.^^ 

"The  Ambassadors  and  Ministers  here  intended  (that  is,  by  the  Con- 
stitution) are  such  only  as  are  known  to  the  law  of  nations.  Their  names, 
grades,  rights,  privileges,  and  immunities  are  perfectly  defined  in  the 
books  which  treat'  of  them,  and  were  thoroughly  understood  by  the  framers 
of  our  Constitution.  They  are,  Ambassadors — Envoys — Envoys  Extraordi- 
nary— Ministers — Ministers  Plenipotentiary — Ministers  Resident.  .  .  .  Tried  by 
these  tests,   and   the   diplomatic  qualities   of  our   intended   Ministers   fail   at 

28  Scott,  ed.,  Reports  to  the  Hague  Conferences,  Intro.,  XIX. 

2»  Benton,  Abridgment  of  Debates,  8 :  463-464.  We  do  not  intend  to  en- 
dorse Senator  Benton's  impHcation  with  reference  to  the  power  of  the 
Senate  to  consent  to  the  appointment  of  such  representatives. 


INSTRUMENTALITIES  FOR  FOREIGN  RELATIONS.         319 

every  attribute  of  the  character.  Spite  of  the  names  which  are  imposed  upon 
them,  they  turn  out  to  be  a  sort  of  Deputies  with  full  powers  for  un- 
definable  objects.  They  are  unknown  to  the  law  of  nations,  unknown  to 
our  Constitution;  and  the  combined  powers  of  the  Federal  Government  are 
incompetent  to  create  them.  Nothing  less  than  an  original  act,  from  the 
people  of  the  States,  in  their  sovereign  capacity,  is  equal  to  the  task. 
Had  these  gentlemen  been  nominated  to  us  as  Deputies  to  a  Congress,  would 
not  the  nominations  have  been  instantly  and  unanimously  rejected?  And 
shall  their  fate  be  different  under  a  different  name?  The  delicacy  of  this 
position  was  seen  and  felt  by  the  administration.  The  terms  'Deputy'  and 
'Commissioner'  were  used  in  the  official  correspondence  up  to  near  the 
date  of  the  nomination,  but  as  these  names  could  not  pass  the  Senate,  a 
resort  to  others  became  indispensable.  The  invitations  and  acceptance  were 
in  express  terms,  for  'Deputies  and  Representatives'  to  a  Congress."  The 
nominations   to  the    Senate   are   wholly   different." 

It  is  true,  Senator  Benton's  view  did  not  prevail  in  the  Senate,  and, 
according  to  American  constitutional  theory  as  well  as  to  the  theory 
of  international  law,  representatives  in  an  international  conference 
or  congress  are  no  different  from  diplomatic  officers.^"  The  distinc- 
tion has  existed,  however,  as  a  psychological  fact  and  will  necessarily 
be  emphasized  if  such  conferences  or  congresses  sit  periodically. 

Count  Beust  remarked  in  1870,  upon  finding  it  impossible  to  call 
together  the  Concert  of  Europe  to  prevent  the  Russian  violation  of 
the  Treaty  of  Paris  and  the  impending  Franco-Prussian  War,  "  II 
ne  vois  pas  d'Europe."  ^^  He  thus  emphasized  that  by  its  periodic 
meetings  before  that  time,  the  Concert  had  in  fact  constituted  a 
European  organ  and  not  a  mere  group  of  national  delegates.  It 
was  because  of  its  confidence  in  this  psychological  eft'ect  of  periodic 
conferences  that  the  Hague  Conference  of  1907  recommended  a 
third  conference^-  and  the  actual  play  of  this  psychological  factor 
is  emphasized  by  the  remarks  of  M.  Nelidow  of  Russia,  president 
of  the  conference,  in  his  closing  remarks :  ^^ 

"  We  are  the  agents  of  our  governments  and  act  by  virtue  of  special 
instructions,  based  before  all  other  considerations  upon  the  interests  of  our 
respective  countries.     The  higher  considerations  of  the  good  of  mankind  in 


30  Corwin,  op.  eit.,  p.  57 ;  supra,  note  28. 

31  Von  Beust,  Memoires,  Trans.  H.  de  Worms,  London,  1887,  2:  222. 

32  Scott,  ed..  Reports  to  Hague  Conferences,  pp.  216,  222.  See  also  In- 
struction of  Secretary  of  State  Root  to  American  delegates  to  the  Second 
Hague  Conference,  1907,  Scott  ed..  Instructions  to  the  American  Delegates  to 
the  Hague  Conferences  and  their  Official  Reports,  1916,  p.  72. 

"  Ibid.,  p.  200. 


320     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

general  should  no  doubt  guide  us,  but  in  applying  them  we  must  have  upper- 
most in  our  minds  the  intentions  of  those  who  direct  our  Governments.  But 
the  direct  interests  of  different  States  are  often  diametrically  opposed.  It 
was  in  endeavoring  to  bring  them  into  agreement  with  the  theoretical  re- 
quirements of  absolute  law  and  justice,  that  the  spirit  of  good  understanding, 
which  I  have  just  mentioned,  came  into  play." 

A  similar  thought  in  the  Congress  of  Versailles  led  to  the  establish- 
ment of  the  League  of  Nations  and  in  this  institution  the  problem 
of,  to  a  certain  extent,  merging  national  official  delegates  with  true 
representatives  in  an  international  institution  was  consciously  con- 
fronted. Thus  said  President  Wilson  in  presenting  the  first  draft 
of  the  Covenant  to  the  Peace  Conference  on  February  14,  1919:^* 

"When  it  came  to  the  question  of  determining  the  character  of  the 
representation  in  the  Body  of  Delegates  (Assembly),  we  were  all  aware  of 
a  feeling  which  is  current  throughout  the  world.  Inasmuch  as  I  am  stating 
it  in  the  presence  of  the  official  representatives  of  the  various  governments 
here  present,  including  myself,  I  may  say  that  there  is  a  universal  feeling 
that  the  world  can  not  rest  satisfied  with  merely  official  guidance.  There 
has  reached  us  through  many  channels  the  feeling  that  if  the  deliberating  body 
of  the  League  of  Nations  was  merely  to  be  a  body  of  officials  representing 
the  various  Governments,  the  peoples  of  the  world  would  not  be  sure  that 
some  of  the  mistakes  which  preoccupied  officials  had  admittedly  made,  might 
not  be  repeated." 

232.  National  Military,  Naval  and  Administrative  Offices. 

From  the  standpoint  of  foreign  relations  the  most  important 
national  agencies  are  the  Army,  Navy  and  Department  of  State.  The 
Constitution  puts  the  organization  of  the  Army,  Navy  and  militia  in 
the  hands  of  Congress.  The  President,  however,  exercises  con- 
siderable independent  power  as  Commander-in-Chief  in  the  detailed 
organization  of  the  military  forces  and  in  the  organization  of  mili- 
tary governments  for  occupied  territory,  and  territory  annexed  by 
treaty  but  not  yet  organized  by  Congress. ^^ 

"  Theoretically,"  said  the  Supreme  Court,  "  Congress  might  prepare  and 
enact   a   scheme    of   civil    government   to   take   eflfect   immediately  upon   the 


'*  League  of  Nations,  II,  special  No.,  p.  17. 
^'  Santiago  v.  Nogueras,  214  U.  S.  260. 


INSTRUMENTALITIES  FOR  FOREIGN  RELATIONS.         321 

cession,  but  practically,  there  always  have  been  delays  and  always  will  be. 
Time  is  required  for  the  maturing  and  enacting  of  an  adequate  scheme  of 
civil  government.  In  the  meantime,  pending  the  action  of  Congress,  there 
is  no  civil  power  under  our  system  of  government,  not  even  that  of  the 
President  as  civil  executive,  which  can  take  the  place  of  the  government 
which  has  ceased  to  exist  by  the  cession.  Is  it  possible  that,  under  such  cir- 
cumstances, there  must  be  an  interregnum?  We  think  clearly  not.  The 
authority  to  govern  such  ceded  territory  is  found  in  the  laws  applicable  to 
conquest  and  cession.  That  authority  is  the  military  power,  under  the 
control  of  the  President  as  Commander-in-Chief,  .  .  .  But  whatever  may 
be  the  limits  of  the  military  power,  it  certainly  must  include  the  authority 
to  establish  courts  of  justice  which  are  so  essential  a  part  of  the  government." 

The  authority  of  such  officers  and  courts  is,  however,  confined  to 
the  locality.     They  cannot  exercise  a  prize  jurisdiction.^® 

233.  Appointment  of  Military  and  Civil  Officers. 

The  states  are  guaranteed  the  privilege  of  appointing  militia 
officers,  but  the  President  may  delegate  his  authority  as  Commander- 
in-Chief  of  the  militia  when  "  in  the  actual  service  of  the  United 
States  "  to  an  officer  of  his  own  appointment.^^  The  appointment 
of  army  and  navy  officers,  as  well  as  of  civil  officers,  is  vested  in 
the  President  acting  by  and  with  the  advice  and  consent  of  the 
Senate,  except  insofar  as  Congress  may  have  vested  the  appoint- 
ment of  inferior  officers  "  in  the  President  alone,  in  the  courts  of 
law,  or  in  the  heads  of  departments."  The  President  may  make 
interim  appointments  during  a  recess  of  the  Senate. ^^ 

Congress  has  actually  vested  the  appointment  of  warrant  officers 
of  the  Navy  and  Marine  Corps  in  the  President  alone  and  tem- 
porarily in  the  Secretary  of  the  Navy.^**  Petty  officers  in  the  Navy 
and  non-commissioned  officers  in  the  Army  are  appointed  by  com- 
missioned officers.  Commissioned  officers  are  generally  appointed 
by  the  President  with  the  advice  and  consent  of  the   Senate  but 


88  Supra,  sec.  227. 

3^  Secretary  of  War  Monroe,  1812,  Am.  State  Pap.,  Mil.  Aff.,  i:  604; 
Att.  Gen.  Butler,  2  op.  711   (1835). 

"  Supra,  sec.  228. 

«*  Rev.  Stat.,  sec.  1405,  Act  May  22,  1917,  sec.  5,  40  Stat.  86;  Comp.  Stat., 
sees.  2554,  2555. 


322     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

emergency  appointments  below  the  rank  of  colonel  have  been  vested 
in  the  President  alone.^"  Promotion  and  retirement  are  provided 
for  by  detailed  acts  of  Congress.  All  military  officers  are  commis- 
sioned by  the  President  and  he  has  the  power  of  removal,  though 
in  the  Army  and  Navy  this  power  is  exercised  only  through  courts- 
martial.  As  Commander-in-Chief,  the  President  exercises  the  power 
of  directing  all  the  military  and  naval  services.*^ 

234.  Organisation  of  tlie  Department  of  State. 

The  Department   of    State   is  peculiarly   under   control   of   the 

President.     It  was  organized  by  an  act  of  1789  and,  differing  from 

other  departments,  is  not  required  to  make  any  reports  to  Congress. 

"  It  is,"  says  Senator  Spooner,  of  Wisconsin,  "  a  department  which  from 
the  beginning  the  Senate  has  never  assumed  the  right  to  direct  or  control, 
except  as  to  clearly  defined  matters  relating  to  duties  imposed  by  statute  and 
not  connected  with  the  conduct  of  foreign  relations.  We  direct  all  the 
other  heads  of  departments  to  transmit  to  the  Senate  designated  papers  or 
information.  We  do  not  address  directions  to  the  Secretary  of  State,  nor 
do  we  direct  requests,  even  to  the  Secretary  of  State.  We  direct  requests  to 
the  real  head  of  that  department,  the  President  of  the  United  States,  and, 
as  a  matter  of  courtesy,  we  add  the  qualifying  words :  '  if  in  his  judgment 
not  incompatible  with  the  public  interest.'  "  *^ 

Though  Senate  confirmation  of  the  appointment  of  the  Secretary 
of  State  is  required,  yet,  as  in  the  case  of  other  cabinet  officers,  it 
is  never  withheld.  As  "  real  head  of  that  department "  the  Presi- 
dent has  never  tolerated  a  lack  of  political  harmony  with  the  Secre- 
tary of  State.  Thus  in  1800  after  President  Adams  had  requested 
Timothy  Pickering  to  tender  his  resignation  and  no  response  had 
been  forthcoming  he  addressed  him  a  note  which  "  discharged  him 
from  any  further  service  as  Secretary  of  State."  President  Wil- 
son promptly  accepted  Secretary  of  State  Lansing's  resignation  in 
1920  when  a  divergence  in  policy  became  evident.*^ 

*0Act  May  18,  1917,  sec.  8,  40  Stat.  81,  as  amended  April  20,  1918;  Comp. 
Stat.,  sec.  2044b. 

*i  Ex  parte  Milligan,  4  Wall.  2. 

■♦^  Senate  Debate,  Feb.  6,  1906,  Cong.  Rec,  40:  1419;  Reinsch,  Readings 
in  Am.  Fed.  Govt.,  p.  85;  Corwin,  op.  cit.,  p.  176;  Hunt,  The  Department  of 
State  of  the  United  States,  1914,  pp.  84,  105. 

*3  Foster,  A  Century  of  Am.  Diplomacy,  p.  180;  Lansing,  The  Peace  Ne- 
gotiations, 1 92 1,  p.  3. 


INSTRUMENTALITIES  FOR  FOREIGN  RELATIONS.         323 

Negotiations  are  ordinarily  conducted  primarily  by  the  Secretary 
of  State,  but  the  President  may  act  personally.  Thayer,  in  his 
Life  of  Hay,  thus  indicates  the  relation  between  Presidents  and  Sec- 
retaries of  State :  ** 

"  Mr.  Hay  used  to  tell  his  friends  that  often  President  McKinley  did 
not  send  for  him  once  a  month  on  business,  but  that  he  saw  President 
Roosevelt  every  day.  That  statement  illustrates  the  difference  in  initiative 
between  the  two  Presidents ;  or,  at  least,  the  ratio  of  their  interest  in  foreign 
relations.  From  the  moment  of  Mr.  Roosevelt's  accession,  the  State  De- 
partment felt  a  new  impelling  force  behind  it.  The  Secretary  still  con- 
ducted the  negotiations,  but  the  origination  and  decisions  of  policy  came  to 
rest  more  and  more  with  the  President.  In  no  other  case  was  this  so  true  as 
in  that  of  the  Panama  Canal.  In  the  earlier  stages  Mr.  Roosevelt  gave 
directions  which  Mr.  Hay  carried  out ;  before  the  end,  however,  the  Presi- 
dent took  the  business  into  his  own  hands;  and  has  always  frankly  assumed 
entire  responsibility  for  the  decisive  stroke." 

235.  National  and  International  Political  Officers  and  Agents. 

The  Constitution  itself  recognizes  the  offices  of  "  ambassadors, 
other  public  ministers  and  consuls  "  and  specifically  vests  power  to 
appoint  their  occupants  in  the  President  acting  with  advice  and  con- 
sent of  the  Senate.  The  exact  definition  of  the  grades,  powers  and 
privileges  of  these  officers  is  determined  by  international  law  and 
treaty.  As  has  been  noticed,  each  of  the  three  departments  of  gov- 
ernment is  held  to  have  inherent  power  to  appoint  subordinates  nec- 
essary for  carrying  out  its  functions.  The  President's  power  to 
negotiate,  implied  from  his  power  to  receive  foreign  ambassadors 
and  ministers,  and  from  his  power  in  the  making  of  treaties,  un- 
doubtedly makes  it  necessary  for  him  to  employ  special,  sometimes 
secret,  agents  to  conduct  negotiations.  These  powers,  however, 
have  given  rise  to  controversy. 

Congress,  and  particularly  the  Senate,  has  questioned  the  power 
of  the  President  (a)  to  interpret  international  law  and  treaty  with 
reference  to  the  grades,  functions  and  privileges  of  diplomatic 
officers,  (b)  to  decide  when  and  where  occasion  has  arisen  for  dis- 
patching such  officers,  and  (c)  to  act  through  agents  appointed  by 
himself  alone  and  holding  no  "office  "  established  either  by  the  Con- 
stitution or  by  act  of  Congress. 

*4  Thayer,  Life  of  John  Hay,  2:  297.     See  also  Hunt,  op.  cit.,  p.  91. 


324     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

236.  Power  to  Determine  Grades  in  Foreign  Service. 

Until  1855  there  appears  to  have  been  no  question  but  that  the 
President  had  exclusive  power  to  decide,  according  to  international 
law  and  treaty,  upon  the  grades  of  diplomatic  and  consular  officers." 
Jefferson,  as  Secretary  of  State,  expressed  the  opinion  that  the  Sen- 
ate had  "  no  right  to  negative  the  grade  "  in  advising  and  consenting 
to  appointments. ■*''  Congress  passed  no  laws  on  the  subject,  and 
appropriation  acts  were  drawn  so  as  to  impose  no  limitations  upon 
the  President's  discretion  in  this  respect.^^ 

By  an  act  of  March  i,  1855,  Congress  provided: 

"  From  and  after  the  30th  of  June,  next,  the  President  of  the  United 
States  shall,  by  and  with  the  advice  and  consent  of  the  Senate,  appoint 
representatives  of  the  grade  of  envoys  extraordinary  and  ministers  pleni- 
potentiary," with  a  specified  annual  compensation  for  each,  "  to  the  follow- 
ing countries,  etc.  .  .  .  The  President  shall  appoint  no  other  than  citizens  of 
the  United  States  who  are  residents  thereof,  or  abroad  in  the  employment 
of  the  Government,  at  the  time  of  their  appointment." 

Attorney-General  Gushing  held  that  the  provisions  of  this  act 
"  must  be  deemed  directory  or  recommendatory  only,  and  not  man- 
datory." *« 

"  The  limit  of  the  range  of  selection,"  he  continued,  "  for  the  appoint- 
ment of  constitutional  officers  depends  on  the  Constitution.  Congress  may 
refuse  to  make  appropriations  to  pay  a  person  unless  appointed  from  this 
or  that  category;  but  the  President  may,  in  my  judgment,  employ  him,  if  the 
public  interest  requires  it,  whether  he  be  a  citizen  or  not,  and  whether  or 
not  at  the  time  of  the  appointment  he  be  actually  within  the  United  States. 
.  .  .  For  Congress  can  not  by  law  constitutionally  require  the  President  to 
make  removals  or  appointments  of  public  ministers  on  a  given  day,  or  to 
make  such  appointments  of  prescribed  rank,  or  to  make  or  not  make  them 
at  this  or  that  place.  He,  with  the  advice  of  the  Senate,  enters  into  treaties ; 
he,  with  the  advice  of  the  Senate,  appoints  ambassadors  and  other  public  min- 
isters. It  is  a  constitutional  power  to  appoint  to  a  constitutional  office,  not 
a  statute  power  nor  a  statute  office.  Like  the  power  to  pardon,  it  is  not 
limit'able  by  Congress." 

*'  The  rules  of  the  Treaty  of  Vienna,  1815,  with  reference  to  the  grades 
of  diplomatic  officers  have  been  applied  as  international  law,  Moore,  Digest, 
4:  430. 

^^Ibid.,  4:  450;  Jeflferson,  Writings  (Ford,  ed.),  5:  161;  Hunt,  op.  cit., 
p.  los. 

"•7  Madison  to  Monroe,  1822,  Ibid.,  4:  451;  Corwin,  op.  cit.,  p.  67. 

*8  Gushing,  Att.  Gen.,  7  Op.  214. 


INSTRUMENTALITIES  FOR  FOREIGN  RELATIONS.         325 

In  spite  of  this  reasoning,  Congress  has  continued  such  legislation. 
The  revised  statutes  specified  the  salaries  of  diplomatic  officers  at 
various  countries  but  did  not  specify  the  grade  individually  except 
for  a  few  of  the  less  important  countries  such  as  Hayti,  Liberia, 
Egypt,  etc.^"  They  refused  compensation  to  diplomatic  and  con- 
sular officers  not  citizens  of  the  United  States  and  provided  that  they 
take  bonds  for  good  behavior.^'*  The  latter  provision  has  been  sus- 
tained in  the  Court  of  Claims.^^  An  act  of  March  3,  1893,  "author- 
ized "  the  President  to  appoint  "  ambassadors  "  in  certain  cases,  and 
an  act  of  March  2,  1909,  provided  "hereafter  no  new  ambassador- 
ship shall  be  created  unless  the  same  shall  be  provided  for  by  an 
act  of  Congress."  ^^  Since  then  Congress  has  specifically  authorized 
new  grades  as  an  Ambassador  to  Spain,  1913;  to  Argentine,  1914; 
to  Chile,  1914;  an  Envoy  Extraordinary  and  Minister  Plenipoten- 
tiary to  Paraguay,  1913;  and  to  Uruguay,  1913.^^  An  act  of  1915 
provided  grades  and  salaries  for  secretaries  of  legation,  consuls- 
general  and  consuls,  and  provided  that  appointments  be  hereafter  to 
the  grade  and  not  to  a  specific  country.  The  consular  service  was 
reorganized  in  detail  by  an  act  of  April  5,  1906.^* 

Thus  Congress  has,  in  fact,  organized  the  permanent  diplomatic 
and  consular  services  and  through  its  control  of  appropriations  it 
seems  able  to  compel  acceptance  of  its  organization.  It  has  not 
usually  authorized  special  or  temporary  missions  or  representation 
on  international  conferences  and  congresses.  The  President  him- 
self has  designated  the  grade  of  such  officers,  and  provided  com- 
pensation from  the  contingent  fund  at  his  own  disposal.  However, 
Congress  has  recently  attempted  to  prevent  such  action.^^ 

49  Rev.  Stat,  sec.  1675;  Comp.  Stat.,  sec.  31 17. 

50  Rev.  Stat,  sees.  1744,  1697;  Comp.  Stat,  sees.  3149.  3150. 

51  Williams  v.  U.  S.,  23  Ct  CI.  46;  Moore,  Digest  4-  457- 
5227  Stat  496;  35  Stat  672;  Comp.  Stat.,  3121. 

5338  Stat  no,  241,  378. 

5*  34  Stat.  99 ;  38  Stat.  805. 

•"Act  March  4,  1913,  37  Stat.  913;  Comp.  Stat.,  sec.  7686.  See  Report 
on  the  Foreign  Service,  National  Civil  Service  Reform  League,  N.  Y.,  191 1,  p. 
65.  As  to  the  value  of  legislation  on  the  subject,  see  Ibid.,  220-223,  and  as 
to  methods  of  Congressional  control,  Ibid..  227-228. 


326     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

237.  Power  to  Determine  Occasion  for  Appointments  in  Foreign 
Sen/ice. 

During  the  early  days  of  the  government  it  was  customary  to 
send  special  missions  for  the  conclusion  of  treaties  and  on  several 
of  these  occasions  the  President  appointed  commissioners  without 
consulting  the  Senate.  On  other  occasions,  as  in  the  appointment 
of  John  Jay  to  negotiate  a  treaty  with  Great  Britain  and  later  in 
the  appointment  of  two  successive  missions  of  three  commissioners 
sent  to  negotiate  with  France,  he  consulted  the  Senate  and  they  did 
not  question  his  authority  to  decide  that  the  occasion  required  a 
diplomatic  mission. ^^ 

In  March,  181 3,  during  the  recess  of  the  Senate,  President  Madi- 
son appointed  Gallatin,  J.  Q.  Adams,  and  Bayard  as  "  Envoys  Ex- 
traordinary and  Ministers  Plenipotentiary  "  to  negotiate  a  treaty  of 
peace  with  Great  Britain.  When  the  Senate  reassembled.  Senator 
Gore,  of  Massachusetts,  introduced  a  resolution.  It  recited  the 
constitutional  provision  authorizing  the  President  "  to  fill  up  all 
vacancies  that  may  happen  during  the  recess  of  the  Senate  by  grant- 
ing commissions  which  shall  expire  at  the  end  of  the  next  session" 
and  then  asserted  that  "no  such  vacancy  can  happen  in  any  office 
not  before  full "  and  consequently  the  President's  act  was  not 
"  authorized  by  the  Constitution,  inasmuch  as  a  vacancy  in  that 
office  did  not  happen  during  such  recess  of  the  Senate  and  as  the 
Senate  had  not  advised  and  consented  to  their  appointment." 

Senator  Gore  assumed  that  the  existence  of  an  "  office  "  in  the 
foreign  service  could  only  be  determined  by  the  President  acting 
with  the  Senate  and  consequently  there  having  been  no  ''office" 
there  was  no  "  vacancy."  Senator  Bibb,  of  Georgia,  however,  took 
the  position  in  reply  that  the  President  alone  decided  whether  an 
"  office  "  in  the  foreign  service  existed  and  might  decide  that  it  did 
during  a  recess  in  which  case  he  could  fill  the  vacancy. "^^ 

"  Sir,"  he  said,  "  there  are  two  descriptions  of  offices  altogether  different 
in  their  nature,  authorized  by  the  Constitution — one  to  be  created  by  law, 
and    the    other    depending    for    their    existence    and    continuance    upon    con- 


^^  Crandall,  op  cit.,  pp.  75-76. 
^^  Benton  Abridgment,  5:  86,  91. 


INSTRUMENTALITIES  FOR  FOREIGN  RELATIONS.         327 

tingencies.  Of  the  first  kind  are  judicial,  revenue,  and  similar  offices. 
Of  the  second  are  Ambassadors,  other  public  Ministers  and  Consuls.  .  .  . 
They  depend  for  their  original  existence  upon  the  law,  but  are  the  offspring 
of  the  state  of  our  relations  with  foreign  nations,  and  must  necessarily 
be  governed  by  distinct  rules.  ...  I  say,  then,  that  whether  the  office  of  a 
Minister  exists  or  does  not — how  and  when  it  exists  are  questions  not  par- 
ticularly and  precisely  settled  by  the  Constitution ;  but  that  the  Executive 
authority  to  nominate  to  the  Senate  foreign  Ministers  and  Consuls,  and  to 
fill  vacancies  happening  during  the  recess,  necessarily  includes  the  power  of 
determining  those  questions." 

The  Senate  ultimately  ratified  all  of  these  appointments  and  those 
of  two  additional  commissioners,  Clay  and  Russel,  though  it  in- 
sisted that  Gallatin  should  first  resign  the  office  of  Secretary  of 
the  Treasury. 

On  December  25,  1825,  President  J.  Q.  Adams  sent  to  the  Sen- 
ate the  names  of  three  men  "  to  be  envoys  extraordinary  and  min- 
isters plenipotentiary  to  the  assembly  of  American  Nations  at  Pan- 
ama." Senator  Benton,  of  Missouri,  contended  that  these  persons 
wevQ  in  reality  "  Deputies  and  Representatives  to  a  Congress  "  and 
wQve  not  Ambassadors  and  Public  Ministers  in  the  meaning  of  the 
Constitution  at  all.  However,  his  view  did  not  prevail  and  the  ap- 
pointments were  eventually  ratified  though  the  appointees  arrived 
at  Panama  too  late  to  take  part  in  the  Congress.^^ 

In  result,  these  two  cases  seem  to  demonstrate  the  power  of  the 
President  to  decide  when  occasion  for  appointment  to  an  office  in 
the  foreign  service  exists  and  this  has  been  since  sustained  in  the 
opinions  of  many  Attorneys-General.^^  In  spite  of  this  admission 
of  his  power,  on  subsequent  occasions,  the  President  has  usually 
sent  special  missions  without  reference  to  the  Senate  at  all,  perhaps 
because  recollection  of  the  Senate  opposition  in  these  two  instances 
lurked  in  his  mind.  In  this  way,  peace  missions  following  the  Mex- 
ican, Spanish  and  World  Wars  and  the  American  representation 
at  the  Hague,  Algeciras  and  other  international  conferences  were 
constituted.  The  President  alone  has  decided  that  the  occasion 
existed,  sent  the  mission  and  compensated  it  out  of  the  contingent 


58  Ibid.,  8 :  463-464- 

59  I  Op.  631;  2  Op.  535;  3  Op.  673;  4  Op.  532;  7  Op.  190,  223;  10  Op. 
357;  II  Op.  179;  12  Op.  32;  19  Op.  261;  Corwin,  op.  cit.,  p.  55- 


328     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

fund  or  relied  upon  a  subsequent  appropriation.*'*'  Here  also  the 
Congress  has  sought  to  intervene,  though  its  power  is  less  than  in 
the  case  of  permanent  missions,  requiring  steady  appropriations. 
By  an  act  of  March  4,  1913,  it  provided :  ^^ 

"  Hereafter  the  Executive  shall  not  extend  or  accept  any  invitation  to 
participate  in  any  international  congress,  conference,  or  like  event  without 
first  having  specific  authority  of  law  to  do  so." 

Congress  has  undoubtedly  gone  beyond  its  powers  in  thus  at- 
tempting to  control  the  President's  foreign  negotiations  and  the 
President  has  ignored  the  act,  notably  at  the  Versailles  Peace  Con- 
gress. The  actual  influence  of  Congress  in  this  field  depends  upon 
the  necessity  for  appropriations.  If  international  conferences  be- 
come frequent,  this  necessity  would  doubtless  be  controlling.^^ 

238.  Power  of  President  to  Appoint  Diplomatic  Agents. 

Finally,  the  Senate  has  often  criticized  the  President's  practice 
of  appointing  agents,  sometimes  with  the  titles  of  diplomatic 
officers,  without  gaining  its  consent.  This  practice  began  almost 
immediately  after  ratification  of  the  Constitution  when  President 
Washington  by  a  letter  of  October  13,  1789,  requested  Gouverneur 
Morris,  then  in  Paris,  to  go  to  London  as  private  agent,  and  "  on 
the  authority  and  credit"  of  the  letter  to  "converse  with  His  Bri- 
tannic Majesty's  Ministers  as  to  certain  matters  affecting  the  rela- 
tions between  the  two  countries."  In  1792  John  Paul  Jones,  then 
an  admiral  in  the  United  States  Navy,  was  appointed  as  commis- 
sioner to  treat  with  Algiers.  In  1816  President  Monroe  sent  three 
commissioners  to  investigate  affairs  in  the  revolting  Spanish-Amer- 
ican colonies  and  in  the  same  year  he  sent  Isaac  Chauncey,  a  naval 
captain,  to  act  with  Consul  William  Shaler  to  negotiate  a  treaty 
with  Algiers.®^ 


6"  Crandall,  op.  cit.,  p.  76.  This  was  also  true  of  the  conference  on 
limitation  of  armament,  1921,  though  provisions  in  the  Naval  appropriation 
acts  of  1916  and  1921  authorized  the  calling  of  ^uch  a  conference,  supra,  sec. 
204. 

*^37  Stat.  913;   Comp.  Stat,  7686. 

'2  Report  on  Foreign  Service,  supra,  note  55,  pp.  225-228 

«»  Moore,  Digest,  4 :  452-453, 


INSTRUMENTALITIES  FOR  FOREIGN  RELATIONS.         329 

239.  Practice  of  Sending  Presidential  Agents. 

Since  that  time  the  practice  has  become  exceedingly  common. 
Among  the  more  notable  appointments  have  been  Charles  Rhind, 
Commodore  Biddle,  and  Consul  David  Offley  to  negotiate  a  treaty 
with  Turkey  in  1829;  Colonel  Roberts,  special  agent  to  China,  Siam 
and  other  eastern  states  in  1832;  A.  Dudley  Mann,  special  agent  to 
various  German  states  in  1846,  confidential  agent  to  revolting  Hun- 
gary in   1849,  and  special  agent  to  Switzerland  in  1850;  Nicholas 
Trist,  commissioner  to  conclude  a  treaty  of  peace  with  Mexico  in 
1847;  Commodore  Perry,  commissioner  to  conclude  a  treaty  with 
Japan  in  1852.     During  the  Civil  War  a  number  of  special  and  con- 
fidential agents  were  sent  to  England  for  purposes  of  investigation 
and  propaganda  as  well  as  negotiation.     Commodore  R.  W.  Shu- 
feldt  was  sent  as  special  envoy  to  conclude  a  treaty  with  Corea  in 
1881  ;  Secretary  of  State  Bayard  with  William  Putnam  of  Maine 
and  J.  B.  Angell  of  Michigan  were  vested  with  power  to  treat  with 
Great  Britain  on  the  North  East  Fisheries  question  in  1887.     James 
H.   Blount  was  sent  as  special   commissioner  to   Hawaii  in   1893. 
Secretary  of  State  Day  and  Whitelaw  Reid,  associated  with  Sen- 
ators Cushman  K.  Davis,  William  P.  Frye  and  George  Gray,  were 
sent  to  Paris  to  conclude  a  treaty  of   peace  with  Spain  in   1898. 
Missions  were  sent  to  the  Hague  conferences  in  1899  and  1907  and 
W.  W.  Rockhill  was  sent  as  "  commissioner  of  the  United  States 
to  China  with  diplomatic  privileges  and  immunities  "  in  1900.     Henry 
White  and  Samuel  R.  Gummere  were  commissioned  by  President 
Roosevelt  to  represent  the  United  States  at  the  Algeciras  confer- 
ence of  1906.     Governor  Taft,  of  the  PhiHppines  Commission,  was 
sent  to  negotiate  with  the  Pope  in  1902.     John  Lind  was  sent  as 
confidential^  agent  to  Mexico  in  1913,  Colonel  House  was  sent  to 
Germany  in  191 6  and  to  France  in  191 7,  and  Elihu  Root  at  the  head 
of  a  special  mission  of  nine  was  sent  to  Russia  in  191 7,  with  the  title 
of  Ambassador  Extraordinary.     President  Wilson  constituted  him- 
self, with  Secretary  of  State  Lansing,  Colonel  House,  Henry  White 
and  General  Tasker  Bliss,  a  commission  to  conclude  a  treaty  of  peace 
with  Germany  in  1919,  and  in  1921,  after  failure  of  the  Senate  to 
consent  to  the  ratification  of  the  treaty  of  Versailles,  President  Hard- 


330     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS, 

ing-  authorized  Ellis  Loring  Dresel  to  negotiate  a  separate  peace  treaty 
with  Germany.  In  the  same  year  President  Harding  appointed  Sec- 
retary of  State  Hughes,  Elihu  Root,  Senators  Lodge  and  Underwood 
American  delegates  to  the  Conference  on  Limitation  of  Armament.*'* 
A  minority  of  the  Senate  Foreign  Relations  Committee  reported 
in  1888:''^ 

"  The  whole  number  of  persons  appointed  or  recognized  by  the  Presi- 
dent, without  the  concurrence  or  advice  of  the  Senate,  or  the  express  au- 
thority of  Congress,  as  agents  to  conduct  negotiations  and  conclude  treaties 
(prior  to  June  25,  1887)  is  four  hundred  and  thirty-eight.  Three  have  been 
appointed  by  the  Secretary  of  State  and  thirty-two  have  been  appointed  by 
the  President  with  the  advice  and  consent  of  the  Senate." 

Apparently  the  only  appointments  to  special  missions  which  have 
been  confirmed  by  the  Senate  since  181 5  are  the  commissioners  to 
the  Panama  Congress  of  1825,  those  to  negotiate  with  China  in 
1880,  and  the  five  commissioners  to  negotiate  the  Treaty  of  Wash- 
ington with  Great  Britain  in  1871.®'' 

240.  Controversies  zvith  Respect  to  Presidential  Agents. 

In  spite  of  the  habitual  practice,  the  Senate  has  often  protested. 

Its  objection  to  the  interim  appointments  by  President  Madison  in 

181 3  would  extend  a  fortiori  to  purely  presidential  commissioners. 

President  Jackson's  mission  appointed  to  treat  with  Turkey  in  1829 

was  criticized  in  the  Senate  in  1831,  though  Senator  Tazewell,  of 

Virginia,  the  principal  critic,  admitted  "the  power  of  the  President 

to  appoint  secret  agents  when  and  how  he  pleases."  ^"^ 

"  But,"  he  continued,  "  as  a  Senator,  I  do  claim  for  the  Senate,  in  the 
language  of  the  Constitution,  the  right  of  advising  and  consenting  to  the 
appointment  of  any  and  every  officer  of  the  United  States,  no  matter  what 


^^Ihid.,  4:  440,  446,  456;  Crandall,  op.  cit.,  p.  78;  Foster,  Diplomatic 
Practice,  chap.  X;  Corwin,  op.  cit.,  pp.  62,  64;  Henry  Adams,  Education, 
p.  146;  J.  M.  Forbes,  Letters  and  Recollections,  1899,  2:  32;  Paullin,  Diplo- 
matic Negotiation  of  American  Naval  Officers,  passim;  Gerard,  My  Four 
Years  in  Germany,  p.  197;  Lansing,  The  Peace  Negotiations,  Chap.  II;  Root. 
The  United  States  and  the  War,  1918,  p.  92 ;  Lodge,  Remarks  in  the  Senate, 
September  26,   1921,  Cong.  Rec,  61 :  6458. 

^5  Fiftieth  Cong.,  2d  Sess.,  Sen.  Doc.  No.  231,  VIII,  332. 

^^  Crandall,  op.  cit.,  p.  yj. 

•'^Benton,  Abridgment,  11:  207. 


INSTRUMENTALITIES   FOR  FOREIGN  RELATIONS.        331 

may  be  his  name,  what  his  duties,  or  how  he  may  be  instructed  to  perform 
them.  And  it  is  only  because  secret  agents  are  not  officers  of  the  United 
States,  but  the  mere  agents  of  the  President  or  of  his  Secretaries,  or  of  his 
military  or  naval  commanders,  that  I  disclaim  all  participation  in  this  ap- 
pointment." 

Senator  Livingston  answered  :  "^^ 

"  Sir,  there  are  grades  in  diplomacy  which  give  different  ranks  and 
privileges — from  an  ambassador  to  a  secret  agent.  .  .  .  Ambassadors  and 
other  public  Ministers  are  directed  to  be  appointed  by  the  President  by  and 
with  the  advice  and  consent  of  the  Senate ;  because  public  missions  re- 
quired no  secrecy,  although  their  instructions  might.  But  the  framers  of  the 
Constitution  knew  the  necessity  of  missions,  of  which  not  only  the  object 
but  the  existence  should  be  kept  secret.  They  therefore  wisely  made  co- 
operation of  the  Senate  ultimately  necessary  in  the  first  instance,  but  left 
the  appointment  solely  to  the  President  in  the  last.  .  .  .  On  the  30th  March, 
1795.  in  the  recess  of  the  Senate,  by  letters  patent  under  the  great  broad 
seal  of  the  United  States,  and  the  signature  of  their  President  (that  Presi- 
dent being  George  Washington),  countersigned  by  the  Secretary  of  State, 
David  Humphreys  was  appointed  commissioner  plenipotentiary  for  negoti- 
ating a  treaty  of  peace  with  Algiers.  .  .  . 

"  I  call  the  attention  of  the  Senate  to  all  the  facts  of  this  case  with 
the  previous  remark,  that  the  construction  which  it  gives  to  the  Constitu- 
tion was  made  in  the  earliest  years  of  the  Federal  Government,  by  the 
man  who  presided  in  the  convention  which  made  that  Constitution,  acting 
with  the  advice  and  assistance  of  the  leading  members  of  that  body,  all 
fresh  from  its  discussion ;  men  who  had  taken  prominent  parts  in  every 
question  that  arose.  .  .  . 

"  By  those  men,  with  this  perfect  and  recent  knowledge  of  the  Con- 
stitution, acting  under  the  solemn  obligation  to  preserve  it  inviolate  and  with- 
out any  possible  motive  to  make  them  forget  their  duty,  was  this  first 
precedent  set;  without  a  single  doubt  on  the  mind  that  it  was  correct;  with- 
out protest,  without  even  remark.  A  precedent  going  the  full  length  of  that 
which  is  now  unhesitatingly  called  a  lawless,  unconstitutional  usurpation ; 
bearing  the  present  act  out  in  all  its  parts,  and  in  some  points  going  much 
beyond  it." 

Although  futilely,  the  Senate  continued  to  protest.  In  1882,  in  con- 
senting to  ratification  of  the  treaty  with  Corea  it  resolved  that  it :  ®® 

"  does  not  admit  or  acquiesce  in  any  right  or  constitutional  power  in  the 
President  to  authorize  or  empower  any  person  to  negotiate  treaties  or  carry 
on  diplomatic  negotiations  with  any  foreign  power,  unless  such  person  shall 
have  been  appointed  for  such  purpose  or  clothed  with  such  power  by  and 


88  Ibid.,  1 1  :  220-222. 

69  Malloy,  Treaties,  etc.,  p.  340. 


332     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

with  the  advice  and  consent  of  the  Senate,  except  in  the  case  of  a  Secretary 
of  State  or  diplomatic  officer  appointed  by  the  President  to  fill  a  vacancy 
occurring  during  the  recess  of  the  Senate,  and  it  makes  the  declaration  in 
order  that  the  means  employed  in  the  negotiation  of  said  treaty  (with  Corea) 
be  not  drawn  into  precedent." 

In  1888  the  Senate  Foreign  Relations  Committee  in  reporting  ad- 
versely upon  the  proposed  fisheries  treaty  with  Great  Britain  held 
in  "  reserve,  for  the  time  being,  those  grave  questions  touching  usur- 
pations of  unconstitutional  powers  or  the  abuse  of  those  that  may 
be  thought  to  exist  on  the  part  of  the  Executive."  The  minority 
report,  however,  sustained  the  President's  appointments  in  this  case 
by  citation  of  precedents,  and  in  the  debate  Senator  Sherman,  chair- 
man of  the  Foreign  Relations  Committee,  who  had  concurred  in  the 
majority  report,  admitted  :  '^° 

"  The  President  of  the  United  States  has  the  power  to  propose  treaties, 
subject  to  ratification  by  the  Senate,  and  he  may  use  such  agencies  as  he 
chooses  to  employ,  except  that  he  can  not'  take  any  money  from  the 
Treasury  to  pay  those  agents  without  an  appropriation  by  law.  He  can 
use  such  instruments  as  he  pleases.  ...  I  suppose  precedents  have  been 
quoted  by  the  Senator  from  Alabama  (Mr.  Morgan,  who  prepared  the 
minority  report)  to  sustain  that  position.  I  do  not  disagree  with  him,  nor 
does  this  controversy  turn  upon  that  point." 

Senate  criticism  was  directed  against  the  commissioning  of  J. 
H.  Blount  to  Hawaii  in  1893  with  "paramount"  authority  in 
all  matters  affecting  the  relationship  of  the  United  States  to  the 
Islands.  The  majority  report  of  the  Foreign  Relations  Committee, 
however,  held :  '^^ 

"  Many  precedents  could  be  quoted  to  show  that  such  power  has  been 
exercised  by  the  President  on  various  occasions,  without  dissent  on  the 
part  of  Congress.  These  precedents  also  show  that  the  Senate  of  the 
United  States,  though  in  session,  need  not'  be  consulted  as  to  the  appoint- 
ment of  such  agents." 

This  position  was  endorsed  by  Senator  Lodge  in  presenting  the  Ger- 
man peace  treaty  to  the  Senate  in  1921  : '^^^ 

"  It  is  the  unquestioned  right  of  the  President  to  appoint  personal  agents 
to  gather  information  for  him,  as  was  done  in  a  rather  famous  case  when 
Ambrose  Dudley-Mann  was  sent  to  Hungary  at  the  time  of  Kossuth's  rebel- 

70  Moore,  Digest',  4:  455;  Cong.  Rec,  Aug.  7,  1888,  pp.  7285,  7287. 
7^1  Cong.  Rec,  53d  Cong.,  2d  Sess.,  p.  127;  Corwin,  op.  cit.,  p.  64. 
718  Cong.  Rec,  September  26,  1921,  61 :  6458. 


INSTRUMENTALITIES  FOR  FOREIGN  RELATIONS.         333 

lion,  or  the  President,  of  course,  can  appoint  anyone  he  chooses  to  represent 
him  in  a  negotiation,  because  the  power  of  initiating  and  negotiating  a  treaty 
is  in  his  hands. 

"  We  have  an  example  at  this  moment  in  the  treaty  with  Germany  now 
before  us.  As  I  stated  on  Saturday,  the  Gentleman  who  represented  us  in 
Berlin  had  been  sent  there  by  President  Wilson,  taken  from  the  diplomatic 
service  and  charged  to  represent  the  United  States  as  far  as  it  could  be 
done  as  a  commissioner.  He  was  simply  a  personal  agent  of  the  President. 
He  could  not  officially  represent  the  United  States.  We  could  not  have 
an  ambassador  because  we  were  technically  at  war  with  Germany.  Therefore 
he  was  sent  there,  and  he  represented  the  President  in  negotiating  the  treaty 
with  Germany  now  before  us  and  signed  it." 

Finally  notice  may  be  taken  of  the  7th  proposed  Senate  reserva- 
tion to  the  Treaty  of  Versailles.     As  considered  on  November  19, 

1919,  it  provided: 

"  No  citizen  of  the  United  States  shall  be  selected  or  appointed  as  a 
member  of  said  commisssions,  committees,  tribunals,  courts,  councils,  or 
ronferences  except  with  the  approval  of  the  Senate  of  the  United  States." 

Later  this  sentence  was  omitted,  and,  as  considered  on  March  19, 

1920,  reservation  seven  retained  merely  the  requirement  that  the 
United  States  should  only  be  represented  in  the  League  of  Nations, 
and,  on  the  agencies  established  by  the  treaty,  by  persons  author- 
ized thereto  by  "  an  act  of  the  Congress  of  the  United  States  pro- 
viding for  his  appointment  and  defining  his  powers  and  duties."  ''^ 

241.  Presidential  Agent  Not  an  Officer. 

The  power  of  the  President  independently  to  dispatch  diplomatic 
agents  seems  to  be  considered  a  proper  implication  from  the  Presi- 
dent's diplomatic  powers  and  is  well  established  in  practice.  Such  an 
agent,  however,  is  not  an  officer  of  the  United  States.  This  is 
evidenced  by  the  fact  that  Senators  who,  according  to  the  Consti- 
tution, cannot  at  the  same  time  hold  ofifices  under  the  United  States, 
have  occasionally  served  on  special  missions  and  also  by  express 
statement  of  the  Attorney-General.     He  is  not,  under  the  law,  en- 

72  The  League  of  Nations,  III,  no.  4,  pp.  179,  196  (Aug.,  1920).  A  reser- 
vation of  similar  effect  was  made  by  the  Senate  in  consenting  to  ratification  of 
the  German  peace  treaty  of  August  25,  1921,  Cong.  Rec,  Oct.  18,  1921, 
61:    7194. 


334     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

titled  to  compensation.     Thus  the  President  is  limited  in  the  use  of 
such  missions  by  the  size  of  the  contingent  fund." 

242.  International  Administrative  and  Judicial  Agencies. 

The  third  class  of  instrumentalities  for  conducting  foreign  re- 
lations are  international  in  character  and  rest  on  treaty  or  agree- 
ment alone.  Arbitration  courts  for  hearing  particular  questions 
have  been  set  up  by  executive  agreement  alone,  by  executive  agree- 
ment authorized  by  general  treaties  and  by  treaties.  The  Bureau 
of  the  Universal  Postal  Union  is  authorized,  so  far  as  the  United 
States  is  concerned,  by  executive  agreement  under  an  act  of 
Congress.  The  Bureau  of  other  international  unions  and  of  the 
Hague  Permanent  Court  of  Arbitration  as  well  as  the  panel  of 
arbitrators  of  the  court  are  set  up  by  treaty.  International  courts 
were  established  for  trial  of  slave  traders  by  the  treaty  of  1 863-1 870 
with  Great  Britain  and  by  the  XII  Hague  Convention  of  1907  an 
international  prize  court  was  provided  for,  but  the  latter  treaty, 
though  consented  to  by  the  Senate,  has  never  been  ratified. 

The  President  has  usually  appointed  representatives  in  such 
bodies  on  the  authority  of  the  agreement  or  treaty  alone,  though  if 
the  body  is  permanent,  the  need  of  appropriation  makes  congres- 
sional action  necessary.  Congress  has  provided  by  law  for  partici- 
pation of  the  United  States  in  the  Pan-American  Union,''*  the 
Bureau  of  the  Hague  Permanent  Court  of  Arbitration,"  the  Inter- 
national Prison  Commission,'^®  and  other  organs.  It  has  not  at- 
tempted to  control  the  organization  or  method  of  appointing  rep- 
resentatives on  such  bodies,  though  the  proposed  seventh  reser- 
vation to  the  Peace  Treaty  of  Versailles  would  have  done  so  for 
organs  set  up  by  that  treaty.  In  general  the  congressional  acts 
seem  to  have  assumed  that  the  power  to  appoint  commissioners  to 
such  bodies  is  vested  in  the  President  alone,  and  that  such  com- 
missioners are  not  "  officers  "  of  the  United  States,  since  Senators 


"The  U.  S.  Constitution,  I,  sec.  6,  cl.  2;  Knox,  Att.  Gen.,  23  Op.  533 
(1901)  ;  Moore,  Digest,  4:  440;  Corwin,  op.  cit.,  pp.  65-66. 

■'^Act  July  14,  1890,  26  Stat.  275. 

■^5  Act  March  22,  1902,  32  Stat.  81. 

^*  Act  Feb.  22,  1913,  37  Stat.  692;  Act  re  International  Waterways 
Commission,  June  13,  1902,  42  Stat.  373;  Comp.  Stat.,  sec.  4984. 


INSTRUMENTALITIES  FOR  FOREIGN  RELATIONS.        335 

have  frequently  served,  especially  on  courts  of  arbitration.  In  1913, 
however,  Congress  attempted  to  forbid  presidential  participation  in 
any  "  international  congress,  conference  or  like  event,  without  first 
having  specific  authority  of  law  to  do  so."  '^^ 

Congress  through  its  control  of  appropriations  has  been  gaining 
an  increasing  influence  in  regulating  the  grade,  location  and  number 
of  offices  in  the  permanent  foreign  service,  and  the  President's 
constitutional  discretion  in  these  matters  has  been  seriously  impaired. 
The  President  has,  however,  retained  his  independence  both  of 
Congress  and  of  the  Senate  in  the  sending  of  special  missions,  and 
the  appointment  of  representatives  on  international  organs.  Al- 
though the  consular  service  has  to  a  considerable  extent  been 
brought  under  civil  service  regulations,  the  diplomatic  service  has 
not  for  positions  above  that  of  Secretary.  Appointments  are  re- 
garded as  political  and  the  President  exercises  discretion,  limited 
by  the  legislation  establishing  the  office  and  the  need  of  senatorial 
advice  and  consent.  These  services  are  subject  to  the  direction  of 
the  President,  enforceable  through  his  independent  removal  power.''* 

243.  Conclusion  on  Power  to  Conduct  Foreign  Relations. 

We  conclude  that  under  the  Constitution  the  control  of  foreign 
relations  is  given  almost  exclusively  to  the  national  government, 
but  it  extends  only  so  far  as  expressly  or  impliedly  delegated.  In 
fact,  this  delegation  has  been  almost,  if  not  entirely  complete,  and 
the  constitutional  limitations  upon  its  exercise  in  defense  of  indi- 
vidual rights,  states  rights  and  the  rights  and  privileges  of  na- 
tional organs  of  government  are  comparatively  unimportant.  Ad- 
equate powers  exist  in  the  President,  the  treaty-making  power. 
Congress  and  the  courts  to  meet  all  international  responsibilities,  to 
make  agreements  of  a  genuinely  international  character,  to  make 
decisions  of  international  importance,  and  to  carry  out  national 
policies.  But  these  powers  have  been  distributed  among  independ- 
ent organs.  Is  there  a  single  principle  underlying  this  distribution? 
We  believe  there  is.  The  President  initiates,  controls  and  con- 
cludes, checked  by  the  possibility  of  a  Senate  veto  on  permanent 

''''  Supra,  notes  61,  72. 

T8  Report  on  the  Foreign  Service,  supra,  note  55,  pp.  21-31,  45,  65; 
supra,  sec.  230. 


336     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

international  agreements  and  by  a  congressional  veto  upon  national 
decisions  calling  for  positive  action. 

For  meeting  the  ordinary  responsibilities  and  exercising  the 
ordinary  powers  of  states  in  the  family  of  nations,  guided  by  inter- 
national law,  the  President  alone  is  competent,  and  his  powers,  being 
in  the  main  derived  from  the  Constitution  itself,  he  is  not  subject 
to  the  detailed  direction  of  Congress,  as  he  is  in  exercising  his 
powers  in  domestic  administration.  For  departures  from  the  nor- 
mal, whether  by  way  of  international  agreement  or  national  policy, 
though  the  President  initiates,  the  Senate  or  Congress  must  consent. 
While  the  powers  upon  which  these  organs  are  able  to  insist  go  little 
beyond  a  discretionary  veto  upon  consummations,  yet  the  Pres- 
ident ought  to  understand  that  to  avoid  the  possibility  of  this  contin- 
gency he  should  consider  their  advice  during  the  course  of  nego- 
tiations and  diplomacy. 

The  dominating  position  of  tTie  President  in  foreign  relations 
results  from  his  initiative,  and  this  is  a  necessary  consequence  of 
the  position  he  occupies  as  the  representative  authority  of  the  United 
States  under  international  law.  His  office  is  the  only  door  through 
which  foreign  nations  can  approach  the  United  States.  His  voice 
is  the  only  medium  through  which  the  United  States  can  speak  to 
foreign  nations.  Moreover  the  fathers  appear  to  have  intended  him 
to  occupy  this  position  and  subsequent  history  has  shown  his  exer- 
cise of  the  initiative  and  essential  control.  On  occasions  when 
foreign  affairs  have  not  pressed  he  has  subordinated  his  initiative 
to  congressional  policies  but  always  when  crises  have  arisen  he  has 
met  them  with  a  prompt  decision  and  adequate  resources  of  power. 
Only  rarely  has  the  veto  of  coordinate  departments  destroyed  his 
achievements. 


PART  V. 
The  Understandings  of  the  Constitution. 


CHAPTER  XVIII. 

Understandings  Concerning  the  Relations  of  the 
Independent  Departments. 

244.  Reason  for  Constitutional  Understandings. 

The  various  organs  of  the  national  government  are  together 
vested  with  sufficient  power  to  conduct  foreign  affairs  and  meet  in- 
ternational responsibilities,  but,  according  to  the  doctrine  of  separa- 
tion of  powers,  each  of  the  three  departments  of  government  exer- 
cises an  independent  discretion,  legally  uncontrolled  by  any  other  au- 
thority.    Three  difficulties  may  arise  from  this  situation : 

{A)  The  powers  of  two  departments  may  overlap,  giving  rise 
to  contrary  action  on  the  same  occasion. 

"  The  existence,"  said  a  Senate  Foreign  Relations  Committee  report  of 
1898,  "  of  the  same  power  for  the  same  purposes  in  both  the  legislative  and 
executive  branches  of  the  Government  might  lead  to  most  unfortunate  result's. 
For  instance,  if  the  legislative  and  executive  branches  both  possessed  the  power 
of  recognizing  the  independence  of  a  foreign  nation,  and  one  branch  should 
declare  it  independent,  while  the  other  denied  its  independence,  then,  since 
they  are  coordinate,  how  could  the  problem  be  solved  by  the  judicial  branch?  "  ^ 

(5)  An  independent  department  may  lack  sufficient  power  to 
achieve  a  desired  end  without  the  cooperation  of  another  independ- 
ent department. 

"  A  treaty,"  said  the  Circuit  Court,  "  is  the  supreme  law  of  the  land  in 
respect  of  such  matters  only  as  the  treaty-making  power,  without  the  aid  of 
Congress,  can  carry  into  effect.  Where  a  treaty  stipulates  for  the  payment 
of  money  for  which  an  appropriation  is  required,  it  is  not  operative  in  the 
sense  of  the  Constitution."  2 

(C)  Organs  properly  adapted  to  meeting  certain  international 
responsibilities  may  not  exist.     The  general  principle  which  ought 


1  Sen.  Doc.  56,  S4th  Cong.,  2d  sess.,  p.  4;  Corwin,  op.  cit.,  p.  36,  supra, 
sec.  191. 

2  Turner  v.   Am.    Baptist   Missionary  Union,   5   McLean  347;   Wharton, 
Digest,  2 :  73 ;  Moore,  Digest,  5  :  222. 

339 


340     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

to  govern  the  discretion  of  the  departments  in  the  presence  of  such 
difficulties  has  been  thus  expressed  by  the  Supreme  Court  of  North 
CaroHna : ^ 

"While  the  executive,  legislative,  and  supreme  judicial  powers  of  the 
government  ought  to  be  forever  separate  and  distinct,  it  is  also  true  that  the 
science  of  government  is  a  practical  one ;  therefore,  v/hile  each  should  firmly 
maintain  the  essential  powers  belonging  to  it,  it  cannot  be  forgotten  that  the 
three  coordinate  parts  constitute  one  brotherhood,  whose  common  trust  re- 
quires a  mutual  toleration  of  what  seems  to  be  a  '  common  because  of 
vicinage '  bordering  on  the  domains  of  each." 

A.     The  Overlapping  of  Powers  of  Independent  Departments. 

245.  Constitutional   Understanding  Respecting  the  Overlapping  of 
Powers. 

The  difficulty  arising  from  the  overlapping  of  the  powers  of  two 
independent  and  coordinate  departments  of  the  government  has 
been  met  in  part  by  the  legal  principle  that  the  most  recent  exercise 
of  power  prevails  and  in  part  by  the  understanding  that  each  de- 
partment should  so  exercise  its  concurrent  powers  as  not  to  impair 
the  validity  of  action  already  taken  by  the  other  department  with- 
out that  department's  consent. 

246.  Concurrent  Powers  of  President  and   Congress. 

The  powers  of  the  President  or  of  the  courts  cannot  conflict 
with  those  of  Congress  or  the  treaty-making  power,  because  the 
constitutional  acts  of  the  latter  are  declared  the  supreme  law  of 
the  land.  Consequently,  a  conflicting  act  of  the  President  or  the 
courts  would  be  contrary  to  law  and  void.  The  President  and 
courts,  however,  have  certain  powers  concurrent  with  congressional 
powers  in  the  sense  that  they  may  validly  act,  until  Congress  has 
acted.  Thus  the  Supreme  Court  could  determine  its  appellate  juris- 
diction upon  the  basis  of  Article  III  of  the  Constitution  alone,* 
and  the  President  could  organize  and  conduct  military  government 
in  newly  acquired  territory,  regulate  the  landing  of  cables,  and 
issue  regulations  for  branches  of  the  civil  service  before  Congress 

'Brown  v.  Turner,  70  N.  C.  93,  102. 

*  Ex  parte  McCardle,  7  Wall.  506,  513,  and  Marshall,  C.  J.,  in  Durousseau 
V.  U.  S.,  6  Cranch  307,  313,  and  U.  S.  v.  Moore,  3  Cranch  159,  170,  172. 


RELATIONS  OF  INDEPENDENT  DEPARTMENTS.     341 

had  acted. ^  But  once  Congress,  or  the  treaty-making  power,  has 
acted,  if  its  act  is  constitutional,  there  is  no  doubt  but  that  it  is  the 
supreme  law  of  the  land,  and  the  President  and  courts  are  hence- 
forth bound  by  it.^  An  act  either  of  Congress  or  of  the  treaty-mak- 
ing power  which  encroaches  upon  the  constitutional  powers  of  the 
President  or  courts  is  of  course  unconstitutional  and  void.  The 
courts  may  so  declare  it,  but  it  has  been  generally  held  that  the 
President  is  confined  to  the  veto  to  invalidate  unconstitutional  legis- 
lation. If  an  act  has  been  signed  by  a  predecessor,  is  passed  over 
his  veto,  or  is  signed  by  himself  inadvertently,  it  is  held  that  he  must 
obey  it,  even  though  the  act  is  clearly  unconstitutional,  until  such 
time  as  the  courts  may  declare  it  void.'^  This  principle  is  not, 
however,  extended  to  congressional  acts  affecting  the  inherent 
powers  and  the  foreign  relations  powers  of  the  President.  Such 
acts,  if  encroachments  upon  presidential  powers,  even  though  man- 
datory in  terms  and  formally  valid,  have  been  interpreted  as  merely 
advisory  and  as  leaving  the  President  discretion  to  ignore  them. 
Thus,  the  President  has  ignored  congressional  acts  and  resolutions 
prescribing  conditions  for  the  removal  of  administrative  officers,* 
defining  the  grades  of  diplomatic  officers,^  directing  the  negotiation 
or  modification  of  treaties,^''  and  formulating  foreign  policy." 


'Santiago  v.  Nogueras,  214  U.  S.  260;  Richards,  Acting  Att.  Gen.,  22 
Op.  13 ;  Moore,  Digest,  2 :  452-463 ;  supra,  sec.  219. 

"Where  two  organs  enjoy  concurrent  powers  to  produce  a  status,  the  one 
acting  first,  of  course,  effects  the  result.  Thus  a  presidential  recognition  of 
•war  would  be  effective  irrespective  of  subsequent  acts  of  Congress.  "  In 
short,  it  frequently  happens  that  the  same  legal  result  may  be  produced  by 
very  different  powers  of  government;  nor  need  the  fact  lead  to  confusion, 
since,  as  soon  as  any  of  the  competent  powers  has  acted,  the  result  is  pro- 
duced." Corwin,  Mich.  Law  Rev.,  18:  672,  but  see  his  President's  Control 
of  Foreign  Relations,  p.  36. 

T  Willoughby,  op.  cit.,  pp.  1306-1309. 

8  As  President  Johnson's  refusal  to  accept  the  tenure  of  office  act,  for 
which  he  was  impeached,  but  not  convicted.  See  also  President  Cleveland's 
action  in  the  Duskin  case,  Presidential  Problems,  1904,  p.  56,  and  Parsons  v. 
U.  S.,  167  U.  S.  324- 

9  Cushing,  Att.  Gen.,  7  Op.  186 ;  supra,  sec.  236. 
loCrandall,  op.  cit.,  p.  74;  supra,  sec.  174. 

11  Supra,  sec.  203. 


342     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

247.  Concurrent  Powers  of  the  President  and  the  Courts. 

The  power  of  the  President  to  settle  international  controversies 
may,  however,  overlap  the  jurisdiction  of  the  courts  to  settle  private 
controversies.  The  understanding  that  the  authority  taking  prior 
action  should  govern,  has  usually  been  applied  in  such  cases.  Thus 
a  German  prize  crew  brought  the  British  vessel  Appam  into  an 
American  port,  while  the  country  was  neutral.  The  original  owner 
promptly  libelled  the  vessel  in  the  United  States  District  Court 
and  while  the  case  was  pending  the  German  government  sought, 
through  the  Department  of  State,  to  have  their  claim  submitted  to 
arbitration.     Secretary  Lansing  replied  in  a  note  of  April  7,  1916:^^ 

"  Moreover,  inasmuch  as  the  Appam  has  been  libeled  in  the  United  States 
District  Court  by  the  alleged  owners,  this  government,  under  the  American 
system  of  government  in  which  the  judicial  and  executive  branches  are  en- 
tirely separate  and  independent,  could  not  vouch  for  a  continuance  of  the 
status  quo  of  the  prize  during  the  progress  of  the  arbitration  proposed  by  the 
Imperial  Government.  The  United  States  Court,  having  taken  jurisdiction 
of  the  vessel,  that  jurisdiction  can  only  be  dissolved  by  judicial  proceedings 
leading  to  a  decision  of  the  court  discharging  the  case — a  procedure  which 
the  executive  cannot  summarily  terminate." 

On  this  statement  two  comments  may  be  made.  Unquesionably, 
the  President,  through  the  Secretary  of  State,  had  power  to  settle  the 
controversy  with  Germany  by  arbitration  or  otherwise,  irrespective 
of  the  results  of  the  District  Court's  decision.  The  fact  that  the 
United  States  could  not  vouch  for  a  continuance  of  the  status  quo 
of  the  vessel  was  no  reason  for  refusing  to  arbitrate  the  interna- 
tional issue.  In  the  second  place,  even  if  constitutional  difficulties 
did  prevent  the  President  meeting  responsibilities  under  interna- 
tional law,  such  difficulties  would  not  be  a  valid  defense  against 
claims  by  foreign  nations.  Foreign  nations  are  entitled  to  expect 
satisfaction  of  their  claims  through  the  President,  according  to  the 
measure  of  international  law  alone.  However,  the  case  illustrates 
the  operation  of  the  constitutional  understanding  whereby  the  Pres- 
ident refuses  to  consider  controversies  already  in  process  of  con- 
sideration by  the  courts. 

^2  Department  of  State,  White  Book,  European  War,  No.  3,  p.  344. 


RELATIONS  OF  INDEPENDENT  DEPARTMENTS,    343 

Conversely,  the  courts  ordinarily  refuse  to  pass  on  controversies 
in  process  of  diplomatic  settlement.  Thus,  in  the  case  of  Cooper, 
the  Supreme  Court  was  asked  to  issue  a  writ  of  prohibition  to 
restrain  the  United  States  District  Court  of  Alaska  from  enforcing 
a  sentence  of  forfeiture  of  a  British  vessel  alleged  illegally  to  have 
taken  seal  in  American  jurisdictional  waters  fifty-seven  miles  from 
shore.  Discussion  was  going  on  between  Great  Britain  and  the 
Department  of  State  as  to  whether  this  point  was  in  American  juris- 
diction and  the  court  expressed  the  opinion  that  the  President  had 
power  to  settle  the  controversy. 

"  If  this  be  so,  the  application  calls  upon  the  court,  while  negotiations  are 
pending,  tq  decide  whether  the  Government  is  right  or  wrong,  and  to  review 
the  action  of  the  political  departments  upon  the  question  contrary  to  the 
settled  law  in  that  regard." 

The  court  dismissed  the  suit  on  finding  that  there  had  been  no 
definite  facts  found  as  to  the  place  of  seizure,  but  its  opinion 
indicates  the  feeling  that  it  ought  not  to  prejudice  the  results  of  the 
controversy  pending  before  the  Department  of  State.  The  court, 
however,  seemed  to  regard  this  feeling  as  an  understanding  rather 
than  a  legal  requirement,  for  it  said :  ^^ 

"  We  are  not  to  be  understood,  however,  as  underrating  the  weight  of 
the  argument  that  in  a  case  involving  private  rights  the  court  may  be  obliged, 
if  those  rights  are  dependent  upon  the  construction  of  acts  of  Congress  or 
of  a  treaty,  and  the  case  turns  upon  a  question,  public  in  its  nature,  which 
has  not  been  determined  by  the  political  departments  in  the  form  of  a  law 
specifically  settling  it,  or  authorizing  the  Executive  to  do  so,  to  render  judg- 
ment, since  we  have  no  more  right  to  decline  the  jurisdiction  which  is  given 
than  to  usurp  that  which  is  not  given." 

This  latter  power  seems  to  have  been  exercised  in  the  case  of  Pearcy 
V.  Stranahan,  where  the  Supreme  Court  decided  upon  the  status  of 
Pine  Island  ofif  Cuba,  although  the  matter  was  and  had  been  for 
seven  years  pending  in  the  State  Department.  Where  a  decision 
has  actually  been  given  by  the  political  departments  on  such  ques- 
tions as  the  limits  of  jurisdiction,  the  status  of  governments  and 
states,  etc.,  the  courts  follow  such  decisions  implicitly.^* 

13 /«  re  Cooper,  143  U.  S.  472;  Moore,  Digest,  i:  744;  Willoughby,  op. 
cit.,  p.  lOIO. 

1*  Pearcy  v.  Stranahan,  205  U.  S.  257  (1907)  ;  Jones  v.  U.  S.,  137  U.  S. 
202;  supra,  sec.  107. 


3-14     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

248.  Concurrent  Powers  of  Treaty  Power  and  Congress. 

The  most  notable  overlapping  of  power,  however,  occurs  in  the 
case  of  Congress  and  the  treaty-making  power.  Treaties  may 
require  the  payment  of  money,  establish  customs  duties,  regulate 
foreign  commerce,  fix  a  standard  of  weights  and  measures,  pro- 
vide for  international  postal  service  and  international  copyright, 
provide  courts  for  the  trial  of  seamen  on  foreign  vessels  sojourn- 
ing in  the  United  States,  define  and  provide  for  punishing  offenses 
against  the  law  of  nations,  require  the  meeting  of  guarantees  by 
armed  force  or  declaration  of  war,  regulate  declarations  of  war  or 
forbid  them  in  certain  circumstances,  prohibit  the  granting  of  letters 
of  marque  and  reprisal,  make  rules  concerning  captures  on  land 
and  water,  limit  the  size  or  disposition  of  military  forces,  make 
rules  for  the  conduct  of  land  and  naval  forces  in  war,  annex  or  dis- 
pose of  territory,  in  fact  there  are  very  few  of  the  enumerated 
powers  of  Congress  which  have  not  been  the  subject  of  treaty.  It 
has  been  suggested  that  the  treaty  power  lacks  "  constitutional  com- 
petency "  to  act  on  these  subjects.  To  this  the  answer  of  Calhoun 
seems  adequate :  ^^ 

"If  this  be  the  true  view  of  the  treaty-making  power,  it  may  be  truly 
said  that  its  exercise  has  been  one  continual  series  of  habitual  and  uninter- 
rupted infringements  of  the  Constitution.  From  the  beginning  and  through- 
out the  whole  existence  of  the  Federal  Government  it  has  been  exercised 
constantly  on  commerce,  navigation,  and  other  delegated  powers." 

The  court  has  often  recognized  this  overlapping  and  considering 
that  acts  of  Congress  "  made  in  pursuance  of  "  the  Constitution,  and 
treaties  "  made  under  the  authority  of  the  United  States "  are 
both  the  supreme  law  of  the  land,  has  regarded  them  of  equal 
validity  and  applied  the  most  recent  in  date  in  case  a  conflict  is  too 
definite  to  reconcile.^^  Thus,  according  to  the  law  neither  treaty- 
making  power  nor  Congress  is  limited  by  the  previous  exercises  of 
concurrent  power  by  the  other.  In  practice,  however,  it  has  been 
recognized  that  Congress  ought  not  to  violate  treaties  at  will  and 

1°  Moore,  Digest,  5  :  164. 

16  Head  Money  Cases,  112  U.  S.  580;  Chinese  Exclusion  Cases,  130  U.  S. 
58;  U.  S.  V.  The  Peggy,  i  Cranch  103. 


RELATIONS  OF  INDEPENDENT  DEPARTMENTS.    345 

that  the  treaty-making  power  ought  not  to  alter  congressional 
poHcies  at  random.  The  fact  that  the  President  and  Senate  par- 
ticipate in  both  treaty-making  and  legislation  tends  to  minimize  such 
conflicts,  but  in  some  cases  they  have  occurred.  Thus  the  Chinese 
exclusion  acts  of  1889  were  in  conflict  with  the  Burlingame  treaty  of 
1868.  Congress,  however,  has  usually  refrained  from  impairing 
treaties  by  legislation  and  if  treaties  were  found  to  conflict  with 
proposed  legislative  policies,  has  advised  the  President  to  negotiate 
modifications  in  the  treaty.  As  such  negotiation  and  ratification 
of  the  resulting  treaty  is  always  discretionary  with  the  President 
and  Senate,  the  practice  means  that  changes  are  in  fact  brought 
about  by  concert  of  Congress  and  the  treaty-making  power. ^'^ 

Treaties  have  very  seldom  been  found  to  conflict  with  earlier 
acts  of  Congress.  Perhaps  the  only  case  is  a  treaty  with  France  of 
1801,  which  required  the  return  of  uncondemned  prizes  and  thereby 
divested  certain  captors  of  their  rights  to  prize  money  as  provided 
by  an  earlier  act  of  Congress.^*  This  is  accounted  for  by  two 
reasons.  Many  treaties  which  would  afifect  established  legislative 
policies  in  such  matters  as  tarifl^s,  commercial  regulation,  etc.,  are 
by  their  own  terms  made  to  depend  for  efifectiveness  upon  con- 
gressional acceptance.  Most  other  treaties  conflicting  with  legis- 
lative policy  are  held  not  to  be  self-executing  and  consequently  can- 
not be  carried  into  effect  until  Congress  acts.  This  is  true  of 
treaties  requiring  an  appropriation,  a  declaration  of  war,  criminal 
punishment,  etc.  The  obligation  of  Congress  to  pass  such  legis- 
lation will  be  considered  later.  However,  whichever  reason  applies, 
the  treaty  power  does  not  in  practice  modify  existing  acts  of 
Congress  without  the  consent  of  Congress. 


17  See  La  Follette  Seaman's  Act  of  1915  and  Jones  Merchant  Marine  Act 
of  1920,  supra,  sees.  184,  187. 

18  U.  S.  V.  The  Peggy,  i  Cranch  103.  See  also  La  Ninfa,  75  Fed.  513, 
applying  the  award  of  the  Behring  Sea  Arbitration  based  on  treaty  and  op- 
posed to  the  earlier  interpretation  of  an  act  of  Congress ;  and  also  application 
of  most-favored-nation  clause  in  Swiss  treaty  of  1850  in  1898,  supra,  sec.  154. 


34G     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

B.     Cooperation  of  Independent   Organs. 

249.  Constitutional   Understanding  Respecting  the   Cooperation   of 
Independent  Organs. 

The  difficulty  which  arises  from  the  frequent  need  of  coopera- 
tion between  independent  and  coordinate  departments  in  carrying 
out  the  powers  of  the  national  government  is  met  by  a  constitu- 
tional understanding  which  may  be  stated  in  the  following  words: 
Where  action  contemplated  by  any  independent  department  re- 
quires the  cooperation  of  another  independent  department  for  its 
carrying  out,  the  advice  of  that  department  ought  to  be  sought 
before  the  action  is  taken,  but  where  such  action  has  already  been 
taken  the  department  whose  cooperation  is  required  ought  to  per- 
form the  necessary  acts  even  though  its  advice  had  not  been  asked 
or  if  asked  had  not  been  followed. 

"  Whenever,"  reported  the  Senate  Foreign  Relations  Committee,  "  af- 
firmative action  of  either  the  executive  or  the  legislative  branch  of  the  gov- 
ernment may  involve  a  call  upon  the  assistance  of  the  other,  the  branch  about 
to  take  action  should,  if  possible,  first  obtain  indications  of  the  other's 
desires."  ^^ 

"  It  is  a  general  principle,"  says  Finley-Sanderson,  "  that  any  valid  act 
done  by  either  the  legislative,  executive  or  judicial  branches  of  the  govern- 
ment is  binding  upon  each  of  the  others,  and  is  not  subject  to  be  set  aside  by 
either  of  them."  ^o 

Each  department  of  the  national  government  may  exercise 
powers  which  will  require  the  cooperation  of  one  or  more  of  the 
other  departments  in  carrying  out.  Such  acts  by  the  courts,  the 
President,  Congress  and  the  treaty-making  power  will  be  considered 
in  succession. 

250.  Decisions  by  the  Courts. 

Most  decisions  of  the  Federal  Courts  will  be  inefifective  unless 
the  President  enforces  them.  Undoubtedly  to  so  enforce  them  is  a 
legal  obligation  of  the  President  under  his  duty  "  to  take  care  that 
the  laws  be  faithfully  executed  "  and  an  attitude  such  as  that  taken 
by   President  Jackson   when  he   remarked :     "  John   Marshall   has 

i»  Sen.  Doc.  56,  54th  Cong.,  2d  sess.,  p.  5.  See  also  Hill,  Present  Prob- 
lems in  Foreign  Policy,  1919,  p.  171,  and  infra,  sec.  256. 

20  Finley-Sanderson,  The  Executive,  p.  217;  Wright,  Am.  Jl.  hit.  Law, 
12:  94;  supra,  sec.  69. 


RELATIONS  OF  INDEPENDENT  DEPARTMENTS.     347 

made  his  decision,  now  let  him  enforce  it"  is  a  violation  of  his 
oath  to  the  Constitution. ^^  He  has  no  independent  discretion  as 
to  whether  the  court's  decision  was  really  a  correct  interpretation 
of  the  Constitution  and  law.  There  is  in  this  case  no  duty  on  the 
part  of  the  court  to  consider  the  President's  probable  attitude 
before  making  its  decision.  On  the  contrary,  the  court  ought  to 
apply  the  law  impartially  and  irrespective  of  the  views  of  the 
political  organs  of  government. 

Decisions  of  the  Supreme  Court  which  involve  an  interpreta- 
tion of  the  Constitution,  statutes,  treaties  or  other  laws  of  the 
United  States  form  precedents  which  by  constitutional  understand- 
ing ought  to  be  followed  in  future  cases  by  all  organs  of  the  gov- 
ernment. The  political  organs  of  the  government  in  performing 
acts  within  their  discretionary  powers  may  exercise  independent 
judgment  as  to  the  meaning  of  the  Constitution,  laws  and  treaties. 
Thus,  Congressmen  and  Senators  would  not  be  violating  their  oaths 
to  support  the  Constitution  if,  honestly  believing  the  decision  erro- 
neous, they  repassed  a  statute  which  had  just  been  declared  un- 
constitutional nor  would  the  President  if  he  signed  it.  Likewise 
the  treaty  power  and  the  President  are  not  legally  bound  to  fol- 
low judicial  decisions  as  to  the  scope  of  their  powers  in  conducting 
foreign  relations  and  as  we  have  seen  foreign  nations  are  entitled 
to  regard  the  statements  of  the  President  on  the  subject  as  practi- 
cally authoritative.  However,  it  is  believed  that  the  other  organs 
of  government  ought  to  regard  the  interpretation  of  law  by  the 
Supreme  Court  as  final  and  to  be  departed  from  only  in  extreme 
cases.^^  But  adherence  to  this  understanding  implies  acceptance 
by  the  court  of  its  converse,  namely,  that  in  making  decisions  on 
constitutional  questions  afifecting  the  competence  of  independent 
organs,  the  court  must  carefully  weigh  the  opinions  of  these  de- 
partments and  follow  them  if  possible.  This  understanding  has 
been  accepted  by  the  court  in  its  repeated  assertion  that  it  will 
hold  the  view  of  the  political  departments,  as  evidenced  through  the 

21  Sumner's  Jackson,  p.  227. 

22  The  President  and  Congress  may,  of  course,  adhere  to  stricter  canons 
of  constitutional  interpretation  than  the  court.  Wright,  Col.  L.  R.,  20:  140; 
Willoughby,  op.  cit.,  p.  1306;  Taft,  op.  cit.,  p.  136;  Finley-Sanderson,  op.  cit., 
p.  218;  Cushman,  Minn.  Law  Rev.,  4:  275. 


348     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

formal  conclusion  of  a  statute  or  treaty,  in  the  highest  respect  and 
will  not  regard  such  acts  as  unconstitutional  unless  so  beyond  reason- 
able doubt.^^ 

251.  Acts  of  the  President. 

The  President,  as  well  as  the  courts,  may  need  the  cooperation 
of  other  organs  in  order  to  make  his  acts  effective.  In  the  per- 
formance of  political  acts  within  his  power,  the  courts  have  con- 
sidered themselves  bound  to  give  efifect  to  his  decisions.  Thus  the 
courts  have  held  themselves  bound  to  give  effect  to  his  decisions  as 
to  which  of  two  contending  governments  in  a  state  of  the  Union  is 
legitimate,  as  to  whether  the  government  in  a  state  is  republican  in 
form,  as  to  the  extent  of  American  territory,  as  to  the  existence  of 
a  contingency  requiring  a  calling  forth  of  the  militia,  as  to  the 
existence  of  civil  war  in  the  United  States,  as  to  the  condition  of 
belligerency  or  neutrality  of  the  United  States,  as  to  the  status  of 
foreign  governments  and  their  representatives,  as  to  the  extent  of 
territory  of  foreign  states,  as  to  the  existence  of  insurgency,  civil 
war  or  international  war  abroad,  and  as  to  the  settlement  of  claims 
of  American  citizens  upon  foreign  governments.  In  giving  effect 
to  such  political  decisions  the  court  has  usually  grouped  the  Pres- 
ident and  Congress  together  as  the  "  political  department  of  the 
government "  and  has  not  often  discussed  the  relative  competence 
of  each  in  such  matters.'*  Unquestionably,  it  might  do  so,  and 
could  properly  refuse  to  follow  a  political  decision  of  the  President 
if  on  a  subject  beyond  his  competence.  Thus  in  his  dissent  in  the 
prize  cases,^^  Justice  Nelson,  supported  by  three  colleagues,  was 
unwilling  to  accept  the  President's  proclamation  of  blockade  as  the 
initiation  of  civil  war,  holding  that  the  power  to  declare  the  existence 
of  war,  even  civil  war,  was  confined  to  Congress.  The  majority, 
however,  thought  themselves  bound  by  the  political  decision  of  the 
President.     The  courts   also  consider  themselves  bound  to   apply 


23  Willoughby,  op.  cit.,  p.  20;  Cushman,  Mich.  Law  Rev.,  19:  771. 

2*  Supra,  sec.  107. 

25  The  Prize  Cases,  2  Black  635,  690. 


RELATIONS  OF  INDEPENDENT  DEPARTMENTS.     349 

executive  orders  of  the  President,  if  made  under  legal  authority, 
in  the  same  manner  as  acts  of  Congress.^® 

On  the  other  hand,  if  acts  of  the  President  require  for  their 
carrying  out  cooperation  by  Congress  or  by  the  treaty-making 
power,  the  obligation  of  these  organs  is  founded  not  upon  law  but 
upon  a  constitutional  understanding.  The  President  may  make 
executive  agreements  which  require  action  by  Congress.  Such  was 
that  by  which  Great  Britain  ceded  Reef  Island  in  Lake  Erie  on 
condition  that  the  United  States  would  erect  a  lighthouse  thereon; 
that  providing  for  the  administration  of  San  Domingan  customs 
houses ;  and  that  providing  for  reciprocity  with  Canada.  So  also 
the  President  may  make  agreements  requiring  action  by  the  treaty- 
making  power.  Such  were  the  preliminaries  of  peace  with  Spain 
in  1898  and  with  Germany  in  1918.  Such  also  were  protocols  with 
Costa  Rica  and  Nicaragua  looking  toward  the  conclusion  of  treaties 
providing  for  the  construction  of  a  Trans-Isthmian  Canal. 

Though  Congress  and  the  treaty-making  power  ought  to  give 
effect  to  such  agreements  if  made  within  the  President's  power,  it 
unquestionably  is  within  their  legal  power  to  refuse.  Such  exec- 
utive agreements  are  not  supreme  law  of  the  land.  Consequently 
before  making  such  agreements  the  President  ought  to  get  the 
advice  of  these  bodies  if  possible. ^^ 

Draft  treaties  negotiated  by  the  President  are  of  even  less  obli- 
gation than  such  executive  agreements,  and  experience  has  shown 
that  the  Senate  does  not  hesitate  to  reject  or  amend  them.^*  Con- 
sequently it  is  especially  important  that  the  President  keep  him- 
self informed  of  the  attitude  of  that  body  during  the  course  of 
negotiation   and   conform  his   policy  thereto.^® 

The  conduct  of  diplomatic  negotiations  by  the  President  and 
the  employment  of  troops  for  defense  of  American  citizens  abroad 
or  defense  of  the  territory  may  easily  lead  to  military  undertak- 
ings which  will  require  either  congressional  appropriations  or  a 
declaration   of    war.     Thus    all    so-called    declarations    of    war   by 


26  Goodnow,  op.  cit.,  p.  85. 

^''  Supra,  sees.  166,  169,  170,  172. 

28  Supra,  sec.  177. 

^^  Supra,  sec.  176;  infra,  sec.  266,  par.  4. 


350     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

Congress  have  in  fact  been  declarations  of  the  "  existence  of  war  " 
and  the  act  of  Congress  of  July  13,  1861,  was  a  ratification  of  the 
proclamation  of  the  President  of  April  19,  1861,  which  was  held  to 
have  signified  the  actual  beginning  of  war.^°  Doubtless,  in  each 
of  these  cases  Congress  was  under  a  practical,  though  not  a  legal 
obligation  to  carry  out  the  undertaking  begun  by  the  President,  and 
unquestionably  in  such  undertakings  the  President  ought  to  keep 
himself  informed  of  and  give  due  consideration  to  the  opinion  of 
Congress. ^^ 

The  same  is  true  of  acts  under  the  President's  authority  as 
Commander-in-Chief  in  time  of  war.  Seizures  of  property  under 
military  necessity  in  occupied  areas  by  way  of  requisition  and  con- 
tribution require  subsequent  compensation  according  to  the  law  of 
war.  Also  the  emancipation  proclamation,  if  indeed  it  was  within 
the  President's  power  at  all,  certainly  required  action  by  Congress, 
if  not  the  amending  power,  to  remain  efifective  after  the  war. 
After  the  Civil  War  Congress  actually  provided  for  compensation 
in  certain  cases  or  seizure  and  the  amending  power  passed  the 
thirteenth  amendment  abolishing  slavery .^^ 

252.  Acts  of  Congress. 

Congress  when  acting  within  its  powers  makes  laws  which  legally 
bind  the  courts  and  the  President.  The  courts,  as  the  official  inter- 
preters of  the  Constitution,  may  examine  the  competence  of 
Congress  and  refuse  to  apply  unconstitutional  statutes.  The  Pres- 
ident, in  his  capacity  as  head  of  the  national  administration,  has 
not  even  this  power.^^  While  acting  as  the  representative  organ 
of  the  government  in  foreign  relations,  however,  he  has  an  inde- 
pendent constitutional  position,  and  is  not  subject  to  the  direction  of 
Congress.  Treaties  are  on  a  par  with  acts  of  Congress,  conse- 
quently while  conducting  negotiations  with  a  view  to  treaty  mak- 
ing, the  President  is  not  bound  to  follow  resolutions  or  directions  of 
Congress  even  though  mandatory  in  terms.  As  a  matter  of  con- 
stitutional understanding  Congress  ought  not  to  pass  such  resolu- 

30  The  Prize  Cases,  2  Black  635,  and  supra,  sec.  208. 

31  Supra,  sec.  209. 

32  Supra,  sees.  216-218. 

33  Supra,  sec.  246. 


RELATIONS  OF  INDEPENDENT  DEPARTMENTS.    351 

tions  except  with  the  consent  of  the  President,  and  it  has  usually 
followed  this  understanding.  If  such  resolutions  are  passed,  doubt- 
less the  President  ought  to  follow  them  as  a  matter  of  constitutional 
understanding,  and  he  usually  has.  However,  he  is  the  judge  of 
the  considerations  which  are  likely  to  make  negotiations  successful 
and  retains  his  discretion  in  spite  of  congressional  directions.^* 

253.  Acts  of  the  Treaty-Making  Power.  Obligation  of  the  Courts. 
The  obligation  of  organs  of  government  to  aid  in  the  carrying 
out  of  the  undertakings  of  coordinate  organs  has  been  most  dis- 
cussed in  connection  with  the  execution  of  treaties.  Treaties  if 
self-executing  are  of  the  same  legal  effect  as  acts  of  Congress  and 
bind  the  President  and  the  courts  in  the  same  manner.  The  latter 
may  declare  a  treaty  unconstitutional  and  void,  but  has  never  done 
so.  The  treaty-making  power  covers  a  broader  field  than  does  the 
power  of  Congress  since  it  is  given  in  full  to  the  national  govern- 
ment while  the  legislative  power  is  divided  between  national  and 
state  governments.  Apparently  the  only  ground  on  which  a  treaty 
could  be  declared  void  would  be  that  it  dealt  with  a  subject  not 
proper  for  international  negotiation,  a  limitation  so  vague  as  to  be 
hardly  capable  of  judicial  application,  or  that  it  violated  an  express 
or  implied  prohibition  of  the  constitution.^-^'  Since  a  declaration  of 
unconstitutionality  based  on  constitutional  prohiljitions  would  not  or- 
dinarily relieve  the  United  States  of  international  responsibility,  the 
courts  have  always  attempted,  heretofore  with  success,  to  reconcile 
doubtful  treaty  provisions  with  the  Constitution.^^  The  courts  cannot 
consider  voidable  treaties  void  until  the  political  departments  have 
acted.  Thus,  the  Supreme  Court  required  the  extradition  of  an 
American  citizen  to  Italy  under  the  treaty  of  1871  even  though 
Italy  had  repeatedly  violated  the  treaty  by  refusing  to  extradite 
Italian  citizens  wanted  by  the  United  States.  For  the  courts  a  treaty 
is  law  from  the  date  of  its  proclamation  by  the  President  until 
announcement  of  its  termination  by  the  political  departments  of  the 


'*  Supra,  sees.  203,  246. 
s«  Supra,  sees.  67,  68,  173. 
^^  Supra,  sec.  31. 


352     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

government,  or  its  supercession  by  a  conflicting  treaty  or  act  of 
Congress. ^''^ 

254.  Acts  of  the  Treaty-Making  Power:     Obligation  of  the  Pres- 
ident. 

The  President  is  legally  bound  by  treaties  the  same  as  by  acts  of 
Congress,  whether  they  have  been  made  by  himself  or  his  prodeces- 
sors.  He  cannot  modify  them  by  agreements  with  the  other  party 
without  ratification  by  two-thirds  of  the  Senate,  though  precedents 
indicate  that  he  may  upon  his  own  authority  terminate  them  by 
denunciation  under  the  terms  of  the  treaty  itself. ^^  In  case  the 
treaty  directs  the  President  in  such  political  matters  as  the  negotia- 
tion of  another  treaty,  or  the  urging  upon  Congress  or  the  States 
of  legislation,  he  retains  his  discretion  and  is  constitutionally  com- 
petent to  ignore  such  directions,  though  by  an  understanding  of  the 
Constitution  he  ought  to  make  honest  efiforts  to  carry  out  the 
treaty. 

255.  Obligation  of  the  Treaty-Making  Power  Itself  as  to  Future 
Action. 

The  treaty  power  cannot  bind  its  own  future  action.  Clearly 
it  can  repeal  one  treaty  by  negotiating  a  new  one  with  the  same 
party.  But  if  it  concluded  a  conflicting  treaty  with  a  dififerent 
party,  a  more  complicated  situation  arises.  Under  constitutional 
law,  unquestionably  the  more  recent  treaty  prevails  though  the 
courts  ought  to  reconcile  the  two  treaties  by  interpretation  if  pos- 
sible. Under  international  law,  however,  the  older  treaty  prevails 
on  the  theory  that  a  treaty  violative  of  the  rights  of  an  innocent 
third  party  is  against  the  policy  of  international  law.  Therefore, 
although  the  treaty  power  is  not  legally  bound  to  respect  its  earlier 
treaties,  it  ought  to  do  so.  The  obligation  is  an  understanding 
which  has  generally  been  observed.  The  Jay  treaty  with  Great 
Britain  in  1794  was  alleged  to  violate  certain  provisions  of  the 
French  treaty  of  1778;  and  the  Panama  treaty  of  1903  was  alleged 

3^  Supra,  sec.  182  et  seq. 
^^  Supra,  sees.  172,  186. 


RELATIONS  OF  INDEPENDENT  DEPARTMENTS.    353 

to   violate   provisions   of   the   Hay-Pauncefote   treaty    with   Great 
Britain  of  1901,  but  they  were  not  clearly  proved  to  do  so.^^ 

Treaties  may  require  subsequent  action  by  the  treaty-making 
power  to  give  them  effect.  Such  is  the  case  with  certain  general 
arbitration  treaties  which  require  the  conclusion  of  a  special  treaty 
or  compromis  for  submission  of  each  particular  controversy  coming 
under  the  general  arbitration  treaty.  Such  would  also  be  true  of 
the  treaty  of  Versailles,  which  urges  the  conclusion  of  treaties 
upon  such  subjects  as  the  maintenance  of  fair  labor  conditions,  the 
maintenance  of  freedom  of  communications  and  transit,  the  pre- 
vention and  control  of  disease,  etc.  Such  provisions  as  this  do  not 
legally  bind  the  treaty-making  power,  but  undoubtedly  the  President 
and  Senate  ought  to  make  due  efforts  to  conclude  such  treaties 
when  the  occasion  arises. 

256.  Acts  of  the  Treaty-Making  Powers:  Obligation  of  Congress. 
Treaties  may  require  action  by  Congress  to  give  them  effect. 
Where  executive  and  judicial  action  alone  is  sufficient  to  give 
treaties  effect  they  are  said  to  be  "  self-executing,"  but  an  exact  dis- 
tinction between  those  treaty  provisions  which  become  ex  propria 
vigore  the  supreme  law  of  the  land  and  those  which  require  legis- 
lative action  is  not  clear.  In  Foster  v.  Neilson  (1829),  Chief 
Justice  Marshall  thought  the  provision  of  the  Florida  cession  treaty 
that  grants  of  land  made  in  Florida  prior  to  January  24,  1818  "  shall 
be  ratified  and  confirmed "  was  not  self-executing  and  that  the 
courts  could  not  recognize  such  titles  until  Congress  had  acted. 
Subsequently  an  examination  of  the  Spanish  text  of  the  treaty 
showed  that  the  phrase  should  have  read  "  shall  remain  ratified  and 
affirmed"  and  in  United  States  v.  Percheman  (1833)  Chief  Justice 
Marshall  held  that  this  rendered  the  clause  self-executing,  support- 
ing his  decision  also  on  principles  of  general  international  law.*" 
However,  there  are  many  acts  which  the  treaty  power  cannot  itself 
perform  or  the  performance  of  which  it  cannot  authorize  by  any 
organ  other  than  Congress,  yet  Congress  is  under  a  certain  obliga- 

39  Wright,  Conflicts  between  International  Law  and  Treaties,  Am.  Jl.  Int. 

Law.  11:  576-579- 

<o  Foster  v.  Neilson,  2  Pet.  253   (1829)  ;  U.  S.  v.  Percheman,  7  Pet.  51 
(1833)  ;  see  also  supra,  sec.  137. 


354     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

tion  to  perform  them  itself  when  necessary  for  carrying  out  a 
treaty.  The  obligation  may  seem  absolute  in  view  of  the  statement 
of  Article  VI  that  treaties  are  the  supreme  law  of  the  land,  but 
in  practice,  and  in  view  of  the  equal  constitutional  power  of 
Congress  itself  to  make  supreme  law  superseding  treaties,  the 
constitutional  duty  of  Congress  must  be  considered  as  an  under- 
standing of  the  Constitution,  rather  than  a  law.'*^ 

Practice  indicates  that  treaty  provisions  dealing  with  matters 
which  for  historical  and  practical  reasons  have  been  placed  by  the 
Constitution  peculiarly  within  legislative  competence,^^  require 
congressional  cooperation  for  their  execution.  Of  this  character 
are  treaty  provisions  dealings  with  finances,  whether  (i)  requiring 
appropriations  of  money,  or  (2)  altering  revenue  laws  and  com- 
mercial regulations.  While  even  in  these  cases  Congress  ought  to 
act  so  as  to  give  efifect  to  a  ratifed  treaty,  yet  the  treaty-making 
power  is  under  an  equal  obligation  to  consider,  in  connection  with 
its  view  of  international  policy,  the  views  on  domestic  policy  of 
Congress,  before  finally  ratifying  the  instrument.  In  these  matters 
foreign  and  domestic  policy  are  connected  with  extraordinary  in- 
timacy, and  a  complete  collaboration  of  the  treaty  power  and  the 
legislative  power  is  appropriate.  An  opportunity  for  Congress  to 
pass  upon  treaties  of  this  character  before  ratification  would  seem 
generally  expedient  though  not  legally  necessary.*^ 

*i  Hamilton,  however,  wrote  in  a  draft  for  Washington's  message  to  the 
House  of  Representatives  on  the  Jay  treaty :  "  The  House  of  Representatives 
have  no  moral  power  to  refuse  the  execution  of  a  treaty  which  is  not  con- 
trary to  the  Constitution,  because  it  pledges  the  public  faith ;  and  have  no 
legal  power  to  refuse  its  execution,  because  it  is  a  law,  until  at  least  it  ceases 
to  be  a  law  by  a  regular  act  of  revocation  of  the  competent  authority." 
Works,  Hamilton  ed.,  7:  566. 

■*2  The  Constitution  not  only  gives  the  financial  powers  to  Congress,  but 
it  gives  them  especially  to  the  House  of  Representatives.  The  terminology 
of  Art.  I,  sec.  7,  cl.  i,  and  sec.  9,  cl.  7,  is  a  different  sort  of  delegation  from 
the  powers  given  by  Art.  l,  sec.  8.  This  is  a  recognition  of  the  historical 
connection  between  control  of  the  purse  and  the  rise  of  the  House  of  Com- 
mons in  England.     See  the  Federalist  No.  58;  Magoon,  Reports,  p.  151. 

43  The  objection  brought  in  the  Federal  Convention  of  1787  against  such 
submission  to  Congress,  that  it  would  make  secrecy  impossible  (Farrand, 
op.  cit.,  2:  538),  would  probably  have  less  weight  at  present.  See  also  supra, 
sees.  59,  149,  154.  Sir  Cecil  Hurst  reported  to  the  6th  committee  of  the  First 
Assembly  of  the  League  of  Nations  that  "  at  the  time  when  the  convention  of 


RELATIONS  OF  INDEPENDENT  DEPARTMENTS.     355 

Other  treaty  provisions  require  for  their  performance  detailed 
supplementary  legislation  or  specific  acts  which  the  Constitution 
directs  to  be  performed  by  Congress.  In  this  category  are  treaty 
provisions  requiring  (3)  the  incorporation  and  administration  of 
territory/*  (4)  the  organization  of  courts  and  creation  of  offices 
and  (5)  a  declaration  of  war  in  certain  contingencies,  or  abstention 
from  war.*^  In  these  cases  Congress  is  bound  to  act  and  carry  out 
in  good  faith  the  obligations  which  the  treaty  power  has  undertaken. 
These  matters  are  ones  upon  which  a  proper  decision  might  be 
expected  from  a  comprehensive  view  of  international  relations, 
and  hence  the  treaty  power  enjoys  a  greater  freedom  of  action  than 
in  those  of  the  former  category. 

Another  class  of  treaty  provisions  are  by  nature  self-executing, 
but  because  of  historical  traditions  and  constitutional  interpreta- 
tion, require  legislation  to  be  executable.  Here  are  included  treaties 
(6)  defining  crimes  and  extending  criminal  jurisdiction.  The  com- 
mon law  has  been  traditionally  assiduous  in  protecting  the  individual 
against  arbitrary  criminal  punishment,  and  this  spirit,  especially  in 
reference  to  criminal  procedure,  has  been  embodied  in  Article  3, 
Section  2,  Clause  3,  the  Fifth  and  Sixth  Amendments,  but  federal 
courts  are  not  denied  a  general  criminal  jurisdiction  by  any  specific 
clause  of  the  Constitution,  and  in  some  early  cases  they  actually 
assumed  jurisdiction  of  crimes  defined  by  customary  international 
law.     This  view  has.  however,  changed,  and  it  is  now  held  that 


Saint  Germain  (for  control  of  arms  trade)  was  drawn  up  it  was  realized 
that  in  certain  countries  the  complete  execution  of  its  provisions  might 
necessitate  legislation"  (First  Assembly  Document,  No.  199)  and  the  Tem- 
porary Mixed  Commission  on  Armaments  attributed  the  failure  of  the  United 
States  to  ratify  this  convention  to  the  failure  of  Congress  to  pass  the  neces- 
sary legislation  (Second  Assembly  Document,  No.  81,  p.  15)-  Congress 
failed  to  respond  to  the  President's  request  for  legislation  in  execution  of 
similar  provisions  of  the  Brussels  act  of  1890.  (Moore,  Digest,  2:  468-474.) 
Supra,  sec.  118. 

"The  terminology  of  Art.  4,  sec.  3,  cl.  2,  indicates  that  the  power  is 

supplementary  in  character. 

45  That  the  power  of  Congress  to  declare  war  is  directory,  rather  than  a 

peculiar  congressional  prerogative,  is  indicated  by  the  incorporation  in  the 

same   clause  of  the  power  to   "make   rules   concerning  captures,"   which   is 

clearly  shared  with  the  treaty  power.     Supra,  sec.  151. 


356     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

the  criminal  jurisdiction  of  federal  courts  it  entirely  statutory.*^ 
Hence,  treaty  crimes  must  be  incorporated  in  acts  of  Congress  be- 
fore they  become  cognizable  in  federal  courts.*' 

In  general  it  may  be  said  that  where  the  cooperation  of  Congress 
is  necessary  to  carry  out  a  treaty,  Congress  ought  to  act,  exercising 
discretion  only  as  to  the  means  most  suitable  for  attaining  the  ends 
contemplated  by  the  treaty,  and  the  duty  is  none  the  less  binding  in 
international  law  and  constitutional  understanding  from  the  fact 
that  the  Constitution  furnishes  no  power  to  compel  it.  The  entire 
system  of  the  Constitution  demands  that  each  department  accept  in 
good  faith  and  cooperate  in  carrying  out  the  undertakings  of  the 
other  departments.  But  such  cooperation  cannot  be  relied  upon 
unless  the  treaty  power  has  given  due  consideration  to  the  attitude 
of  Congress  before  making  the  commitment. 

"  There  is  force,  no  doubt,"  says  David  Jayne  Hill,  "  in  the  contention 
that  the  Congress  of  the  United  States  is  under  a  moral  obligation  to  main- 
tain the  honor  of  the  nation,  which  implies  the  strict  fulfillment  of  all  pledges 
made  by  the  treaty-making  power,  but  there  is  even  more  weight  in  the 
affirmation  that  the  treaty-making  power  is  under  a  moral  obligation  not  to 
pledge  the  honor  of  the  nation  in  doubtful  conditions,  as  well  as  under  a 
legal  obligation  not  to  destroy  the  freedom  of  a  coordinate  branch  of  the 
government  by  pledging  it  to  a  performance  beyond  the  intentions  of  the 
Constitution  from  which  all  its  authority  is  derived."  *^ 


*^  Supra,  sees.  128,  129. 

47  Congress  has  passed  laws  giving  courts  jurisdiction  over  many  offenses 
against  international  law,  supra,  sees.  1 12-122.  Although  State  courts  must 
regard  treaties  as  the  supreme  law  of  the  land,  they  appear  to  be  excluded 
from  jurisdiction  of  treaty  crimes  by  the  Judicial  Code,  sec.  256,  cl.  i,  which 
gives  the  Federal  courts  exclusive  jurisdiction  "of  all  crimes  cognizable  under 
the  authority  of  the  United  States."  A  treaty  crime  would  probably  be  con- 
sidered in  this  category,  even  if,  because  of  the  failure  of  Congress  to  act, 
the  Federal  courts  could  not  exercise  jurisdiction. 

48  Hill,  Present  Problems  in  Foreign  Policy,  1919,  p.  171.  Secretary  of 
State  Hughes  has  spoken  to  the  same  effect :  "  The  extent  to  which  Congress 
would  regard  itself  as  bound,  as  a  matter  of  good  faith,  to  enact  legislation 
for  the  purpose  of  carrying  out  treaties  has  been  the  subject  of  debate,  from 
time  to  time,  since  the  days  of  Washington.  Despite  these  debates,  and  not- 
withstanding its  power  to  frustrate  the  carrying  out  of  treaties.  Congress  in 
a  host  of  instances  has  passed  the  necessary  legislation  to  give  them  effect; 
and  the  disposition  has  frequently  been  manifested  to  avoid  any  basis  for  the 
charge  of  bad  faith  through  a  disregard  of  treaty  stipulations.  .  .  .  Foreign 


RELATIONS  OF  INDEPENDENT  DEPARTMENTS.    357 

C.  Duty  of  the  Departments  to  Act. 

257.  Constitutional  Understanding  Respecting  the  Establishment  of 
Necessary  Instrumentalities. 

The  difficulty  which  arises  from  the  lack  of  constitutional  instru- 
mentalities for  meeting  all  international  responsibilities  is  met  in 
part  by  the  legal  duty  of  the  President  "  to  take  care  that  the  laws 
be  faithfully  executed  "  and  in  part  by  an  understanding  requiring 
Congress  to  supply  the  instrumentalities  necessary  for  meeting  inter- 
national responsibilities.  Story  pointed  out  that  Congress  was  under 
an  obligation  to  establish  inferior  federal  courts  in  order  to  carry 
out  the  purposes  of  the  Constitution.*^ 

"If  Congress  may  lawfully  omit  to  establish  inferior  courts,  it  might 
follow  that  in  some  of  the  enumerated  cases  the  judicial  power  could  no- 
where exist.  .  .  .  Congress  is  bound  to  create  some  inferior  courts,  in  which 
to  vest  all  that  jurisdiction  which,  under  the  Constitution,  is  exclusively 
vested  in  the  United  States,  and  of  which  the  Supreme  Court  cannot  take 
original  cognizance." 

We  have  noticed  that  Congress,  under  the  necessary  and  proper 
clause,  has  power  to  provide  for  meeting  international  responsibil- 
ities.°**  It  is  believed  that  it  is  under  a  constitutional  duty  to  exer- 
cise these  powers. 

258.  Duty  of  All  Organs  to  Aid  in  Meeting  International  Respon- 
sibilities. 

The  traditional  conceptions  of  American  statesmen  has  been  that 
all  organs  of  government  were  bound  to  aid  in  the  meeting  of  inter- 
national responsibilities. 


nations  might  be  expected  to  take  the  view  that  they  were  not  concerned  with 
our  internal  arrangements,  and  that  it  was  the  obligation  of  the  United  States 
to  see  that  the  action  claimed  to  have  been  agreed  upon  was  taken.  If  that 
action  was  not  taken,  although  Congress  refused  to  act  because  it  believed  it 
was  entitled  to  refuse,  we  should  still  be  regarded  as  guilty  of  a  breach  of 
faith.  It  is  a  very  serious  matter  for  the  treaty-making  power  to  enter  into 
an  engagement  calling  for  action  by  Congress  unless  there  is  every  reason  to 
believe  that  Congress  will  act  accordingly."  (Address  in  New  York,  March 
26,  1919,  on  the  League  of  Nations  Covenant,  International  Conciliation, 
Special  Bulletin,  April,  1919,  pp.  689-691.)     See  also  supra,  sec.  39. 

49  Martin  v.  Hunter,  i  Wheat.  304  (1816). 

"0  Supra,  sec.  225. 


358     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

"The  statesmen  and  jurists  of  the  United  States,"  says  Sir  Henry  Maine, 
"  do  not  regard  international  law  as  having  become  binding  on  their  country 
through  the  intervention  of  any  legislature.  They  do  not  believe  it  to  be  of 
the  nature  of  immemorial  usage  of  which  the  memory  of  man  runneth  not  to 
the  contrary.  They  look  upon  its  rules  as  a  main  part  of  the  conditions  on 
which  a  state  is  originally  received  into  the  family  of  civilized  nations.  .  .  . 
If  they  put  it  in  another  way,  it  would  probably  be  that  the  state  which  dis- 
claims the  authority  of  international  law  places  herself  outside  the  circle  of 
civilized  nations."  '^^ 

In  accordance  with  this  conception  of  international  law,  Duponceau 
has  written :  ^^ 

"  The  law  of  nations  is  to  be  carried  into  effect  at  all  times  under  the 
penalty  of  being  thrown  out  of  the  pale  of  civilization  or  involving  the  coun- 
try in  war.  Every  branch  of  the  national  administration,  each  within  its 
district  and  its  particular  jurisdiction,  is  bound  to  administer  it.  .  .  .  Whether 
there  is  or  not  a  national  common  law  in  other  respects,  this  universal  com- 
mon law  can  never  cease  to  be  the  rule  of  executive  and  judicial  proceedings 
until  mankind  shall  return  to  the  savage  state." 

The  exercise  by  each  organ  of  all  constitutional  powers  necessary 
to  assure  the  meeting  of  international  responsibilities  is  a  constitu- 
tional understanding  which  each  organ  of  the  government  ought  to 
observe.  The  United  States  has  insisted  upon  this  principle  in  its 
dealings  with  other  nations.^^  Foreign  nations  have  diplomatically 
and  judicially  asserted  it.^^  The  Senate,  the  courts,  the  President 
and  text  writers  have  maintained  it  at  different  times. ^^  It  is  diffi- 
cult to  see  on  what  other  principle  the  meeting  of  international  re- 
sponsibilities in  good  faith  can  be  assured  in  a  government  of  divided 
powers,  and  if  these  responsibilities  are  not  met  it  would  seem  that 
the  objects  of  the  Constitution  as  stated  in  its  preamble  to  which  all 
officers  of  the  government  are  pledged  under  oath  would  be  in 
peril.     Organs  of  government,  says  Pillet,  must  observe  the  more 

51  Maine  Int.  Law,  p.  37,  supra,  sec.  33. 

"2  Duponceau,  op.  cit.,  p.  3. 

B3  Mr.  Livingston,  Sec.  of  State,  to  Mr.  Serrurier,  June  3,  1833,  Wharton, 
2 :  67 ;  supra,  sec.  3. 

54  French  Conseil  d'Etat,  Dalioz,  Juris.  Gen.,  Rept.  t.  42,  s.  v.  Traite  Int., 
No.  131,  Wright,  Am.  Jl.  Int.  Law,  12:  94. 

'^^  Supra,  sees.  11,  39,  69. 


RELATIONS  OF  INDEPENDENT  DEPARTMENTS.    359 

fundamental  obligations  of  international  law  "  on  penalty  of  expos- 
ing the  state  to  a  responsibility  which  may  paralyze  its  sovereignty 
and  put  obstacles  to  the  reign  of  its  national  law."^® 

58  Piyet,  Rev.  Gen.  de  Droit  Int.  Pub.,  5 :  87. 


CHAPTER  XIX.* 

The  Control  of  Foreign  Relations  in  Practice. 

259.  The  Position  of  the  President. 

Our  study  of  the  international  and  constitutional  law  governing 
the  conduct  of  foreign  relations  has  brought  out  two  facts.  First, 
that  the  President  is  the  dominating  figure.  As  the  representative 
authority  under  international  law  and  as  the  authority  with  ex- 
clusive power  under  constitutional  law  to  communicate  with  foreign 
nations  he  has  the  initiative  in  conducting  foreign  affairs.  No  less 
significant,  however,  is  the  fact  that  the  President  does  not  have  con- 
stitutional power  to  perform  many  acts  essential  to  a  proper  con- 
ducting of  foreign  relations.  Many  of  these  powers  are  vested  in 
other  departments  of  the  government,  coordinate  with  the  Presi- 
dent. In  such  cases  he  is  obliged  to  rely  on  persuasion  and  the 
operation  of  understandings  of  the  Constitution  in  order  to  carry 
out  foreign  policies  successfully,  and  to  meet  international  respon- 
sibilities. Has  this  proved  a  practically  effective  system  for  con- 
ducting foreign  relations? 

260.  Friction  in  the  American  System. 

That  it  has  often  developed  friction  is  unquestionable.  "A 
treaty  entering  the  Senate,"  wrote  John  Hay,  "  is  like  a  bull  going 
into  the  arena ;  no  one  can  say  just  how  or  when  the  final  blow  will 
fall — but  one  thing  is  certain,  it  will  never  leave  the  arena  alive."  ^ 
When  the  Secretary  of  State  put  this  in  his  diary  he  had  seen  seven- 
teen treaties  borne  from  the  Senate  lifeless  or  so  mutilated  by  amend- 
ments that  they  could  not  survive.  We  can  pardon  his  earlier  state- 
ment :  "  The  fact  that  a  treaty  gives  to  this  country  a  great,  lasting 
advantage  seems  to  weigh  nothing  whatever  in  the  minds  of  about 
half  the  Senators.     Personal  interest,  personal  spites,  and  a  con- 


*  The  major  portion  of  this  chapter  was  published  in  the  American  Po- 
litical Science  Review,  February,  1921. 

^  Thayer,  The  Life  of  John  Hay,  2 :  393. 

360 


FOREIGN  RELATIONS  IN  PRACTICE.  361 

tingent  chance  of  petty  political  advantage  are  the  only  motives 
that  cut  any  ice  at  present."  ^  Numerous  illustrations  of  strained 
relations  between  the  Executive  and  the  Legislature  at  Washington 
might  be  cited.  Thus  in  "  The  Education,"  Henry  Adams  records 
the  reply  of  a  cabinet  officer  to  his  plea  for  patience  and  tact  in 
dealing  with  Congress :  "  You  can't  use  tact  with  a  Congressman ! 
A  Congressman  is  a  hog !  You  must  take  a  stick  and  hit  him  on  the 
snout."  3 

Going  back  even  farther  we  find  in  John  Quincy  Adams's  Diary 
comment  on  a  very  early  incident :  * 

"  Mr.  Crawford  told  twice  over  the  story  of  President  Washington's 
having  at  an  early  period  of  his  administration  gone  to  the  Senate  with  a 
project  of  a  treaty  to  be  negotiated,  and  been  present  at  their  deliberations 
upon  it.  They  debated  it  and  proposed  alterations  so  that  when  Washington 
left  the  Senate  Chamber  he  said  he  would  be  damned  if  he  ever  went  there 
again.  And  ever  since  that  time  treaties  have  been  negotiated  by  the 
Executive  before  submitting  them  to  the  consideration  of  the  Senate." 

Senator  Maclay,  who  was  present  at  the  time,  records  the  same  in- 
cident in  his  journal  on  August  22,  1789.° 

"  I  cannot  now  be  mistaken.  The  President  wishes  to  tread  on  the 
necks  of  the  Senate.  .  .  .  He  wishes  us  to  see  with  the  eyes  and  hear  with 
the  ears  of  his  Secretary  only.  The  Secretary  to  advance  the  premises, 
the  President  to  draw  the  conclusions,  and  to  bear  down  our  deliberations 
with  his  personal  authority  and  presence.    Form  only  will  be  left  to  us." 

261.  Criticisms  of  the  American  System. 

The  prevalence  of  such  incidents  suggests  that  the  difficulties 
which  arose  between  President  Wilson  and  the  Senate  in  consider- 
ing the  Peace  Treaty  of  Versailles  were  not  wholly  due  to  person- 
alities. It  suggests  that  institutions  may  have  been  partly  to  blame. 
Indeed,  Viscount  Grey,  in  his  letter  to  the  Times  of  January  31, 
1920,  said  that  the  American  Constitution  "  not  only  makes  possible, 
but,  under  certain  conditions,  renders  inevitable  conflict  between  the 
Executive  and  the  Legislature." 


2/fci'd.,  2:  274. 

3  The  Education  of  Henry  Adams,  1918,  p.  261. 

*  Memoirs,  6:  427. 

5  Journal  of  William  Maclay,  N.  Y.,  1890,  p.  132. 


362     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

American  commentators  have  often  deplored  this  situation. 
Frequently  they  have  urged  reform,  usually  in  the  direction  of  the 
British  cabinet  system,  but  their  attention  has  been  centered  upon 
domestic  affairs.  It  is  an  extraordinary  fact  that,  with  respect  to 
the  control  of  foreign  affairs,  the  reverse  is  true.  British  writers 
have  looked  hopefully  to  the  United  States  as  a  model  for  reform. 
Thus,  in  his  American  Commonwealth,  Lord  Bryce  says : " 

"  The  day  may  come  when  in  England  the  question  of  limiting  the 
present  all  but  unlimited  discretion  of  the  executive  in  foreign  affairs  will 
have  to  be  dealt  with,  and  the  example  of  the  American  Senate  will  then 
deserve  and  receive  careful  study." 

This  opinion  has  been  acted  upon,  and  features  of  the  American 
system  have  been  endorsed  by  the  British  union  for  democratic  con- 
trol of  foreign  relations  founded  in  1914.'' 

262.  Need  of  Popular  Control  in  Foreign  Relations. 

Two  things  seem  to  be  needed  in  an  institution  designed  to  con- 
duct foreign  relations  with  success — concentration,  or  the  ability  to 
act  rapidly  and  finally  in  an  emergency,  and  popular  control  giving 
assurance  that  permanent  obligations  will  accord  with  the  interests 
of  the  nation.  The  subordination  of  national  interests  to  dynastic 
and  personal  ends,  prominent  in  sixteenth  and  seventeenth  century 
diplomacy,  showed  the  vice  of  an  irresponsible  concentration  of 
power.  The  natural  remedy  seems  to  be  parliamentary  participa- 
tion in  treaty-making  and  war-making  and  this  has  in  part  been 
provided  for  in  most  continental  European  Constitutions  during  the 
nineteenth  and  twentieth  centuries.^     In  England  alone,  the  Crown 


8  American  Commonwealth,  2d  ed.,  p.   104. 

^ "  The  Morrow  of  the  War,"  first  pamphlet  issued  by  the  Union  of 
Democratic  Control,  1914,  printed  in  Ponsonby,  Democracy  and  Diplomacy, 
London,  1915,  p.  21. 

®  See  Myers,  Legislatures  and  Foreign  Relations,  Am.  Pol.  Sci.  Rev., 
11:  643  et  seq.  (Nov.,  1917),  and  British  report  on  Treatment  of  Inter- 
national Questions  in  Foreign  Governments,  Pari.  Pap.,  Misc.  No.  5  (1912), 
Cd.  6102,  printed  in  Appdx.  II,  Ponsonby,  Democracy  and  Diplomacy,  p. 
128  et  seq.,  and  Heatley,  Diplomacy  and  the  Study  of  Foreign  Relations, 
1919,  p.  270  et  seq.  See  also  Method?  and  Procedure  in  Foreign  Countries 
Relative  to  the  Ratification  of  Treaties,  66th  Cong.,  ist  Sess.,  Sen.  Doc.  26. 


FOREIGN  RELATIONS  IN  PRACTICE.  363 

preserves  its  ancient  prerogative  in  these  matters  and  although  in 
practice  ParHament  is  sometimes  consulted  before  ratification  of 
important  treaties,  Lord  Bryce  and  others  have  urged  a  more  certain 
method  of  popular  control,  suggesting  study  of  the  American  proc- 
ess of  Senate  participation.^  But  why  labor  the  point !  Democracy 
is  convinced  of  the  merits  of  democratic  diplomacy.  There  is 
greater  need  to  emphasize  the  importance  of  concentration. 

263.  Need  of  Concentration  of  Authority. 

This  need  of  concentration  of  power  for  the  successful  conduct 
of  foreign  affairs  was  dwelt  upon  in  the  works  of  John  Locke,^** 
Montesquieu,^^  and  Blackstone,^-  the  political  Bibles  of  the  consti- 
tutional fathers.     It  was  emphasized  by  many  speakers  in  the  federal 

^  Supra,  notes  6,  7.  For  relations  of  Crown  and  Parliament  in  treaty- 
making  in  England,  see  Anson,  Law  and  Custom  of  the  Constitution,  3d  ed., 
II,  pt.  2,  p.   103  et  seq. 

10  Supra,  sec.  83. 

11  "  By  the  (executive  power,  the  prince  or  magistrate)  makes  peace  or 
war,  sends  or  receives  embassies,  establishes  the  public  security,  and  pro- 
vides against  invasions.  .  .  .  The  Executive  power  ought  to  be  in  the 
hands  of  a  monarch ;  because  this  branch  of  government  which  has  always 
need  of  expedition  is  better  administered  by  one  than  by  many;  whereas, 
whatever  depends  on  the  legislative  power  is  oftentimes  better  regulated  by 
many  than  by  a  single  person.  But  if  there  was  no  monarch,  and  the 
executive  power  was  committed  to  a  certain  number  of  persons  selected  from 
the  legislative  body,  there  would  be  an  end  of  liberty;  by  reason  the  two  pow- 
ers would  be  united,  as  the  same  persons  would  actually  sometimes  have, 
and  would  moreover  always  be  able  to  have,  a  share  in  both."  (Montesquieu, 
L'Esprit  des  lois,  1.  xi,  c.  6,  ed.  Philadelphia,  1802,  i :   181,  186.) 

12  "  With  regard  to  foreign  concerns,  the  king  is  the  delegate  or  repre- 
sentative of  his  people.  It  is  impossible  that  the  individuals  of  a  state, 
in  their  collective  capacity,  can  transact  the  affairs  of  that  state  with  an- 
other community  equally  numerous  as  themselves.  Unanimity  must  be  want- 
ing to  their  measures,  and  strength  to  the  execution  of  their  counsels.  In 
the  king,  therefore,  as  in  a  centre,  all  the  rays  of  his  people  are  united, 
and  form  by  that  union  a  consistency,  splendor,  and  power  that  make 
him  feared  and  respected  by  foreign  potentates ;  who  would  scruple  to  enter 
into  any  engagement  that  must  afterwards  be  revised  and  ratified  by  a  popu- 
lar assembly.  What  is  done  by  the  royal  authority,  with  regard  to  foreign 
powers,  is  the  act  of  the  whole  nation;  what  is  done  without  the  king's  con- 
currence is  the  act  only  of  private  men."  (Blackstone,  Commentaries,  i : 
252.) 


364     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

convention/^  by  the  authors  of  the  Federahst/*  and  by  President 
Washington  in  his  message  on  the  Jay  treaty .^^     The  same  opinion 

13  See  remarks  by  Hamilton  and  Gouverneur  Morris,  Farrand,  op.  cit., 
i:  290,  513. 

1*  "  It  seldom  happens  in  the  negotiation  of  treaties,  of  whatever  nature, 
but  that  perfect  secrecy  and  immediate  dispatch  are  sometimes  requisite. 
There  are  cases  where  the  most  useful  intelligence  may  be  obtained,  if  the 
persons  possessing  it  can  be  relieved  from  apprehension  of  discovery.  Those 
apprehensions  will  operate  on  those  persons  whether  they  are  actuated  by 
mercenary  or  friendly  motives;  and  there  doubtless  are  many  of  both  de- 
scriptions who  would  rely  on  the  secrecy  of  the  President,  but  who  would 
not  confide  in  that  of  the  Senate,  and  still  less  in  that  of  a  large  popular 
assembly.  The  convention  have  done  well,  therefore,  in  so  disposing  of  the 
power  of  making  treaties  that  although  the  President  must,  in  forming 
them,  act  by  the  advice  and  consent  of  the  Senate,  yet  he  will  be  able  to 
manage  the  business  of  intelligence  in  such  a  manner  as  prudence  may 
suggest. 

"  They  who  have  turned  their  attention  to  the  affairs  of  men  must  have 
perceived  that  there  are  tides  in  them;  tides  very  irregular  in  their  duration, 
strength  and  direction  and  seldom  found  to  run  twice  exactly  in  the  same 
manner  or  measure.  To  discern  and  to  profit  by  these  tides  in  national  af- 
fairs is  the  business  of  those  who  preside  over  them ;  and  they  who  have  had 
much  experience  on  this  can  inform  us  that  there  frequently  are  occasions 
when  days,  nay,  even  when  hours,  are  precious.  ...  So  often  and  so  essen- 
tially have  we  heretofore  suffered  from  the  want  of  secrecy  and  dispatch  that 
the  Constitution  would  have  been  inexcusably  defective  if  no  attention  had 
been  paid  to  those  objects.  Those  matters  which  in  negotiations  usually  re- 
quire the  most  secrecy  and  the  most  dispatch  are  those  preparatory  and 
auxiliary  measures  which  are  not  otherwise  important  in  a  national  view 
than  as  they  tend  to  facilitate  the  attainment  of  the  objects  of  negotiation. 
For  these  the  President  will  find  no  difficulty  to  provide ;  and  should  any  cir- 
cumstance occur  which  requires  the  advice  and  consent  of  the  Senate,  he 
may  at  any  time  convene  them."  (The  Federalist,  Jay,  No.  64,  Ford,  ed.,  pp. 
429-430.)     See  also  Hamilton,  No.  70,  Ford,  ed.,  p.  467. 

15 "  The  nature  of  foreign  negotiations  requires  caution  and  their  suc- 
cess must  often  depend  on  secrecy;  and  even  when  brought  to  a  conclusion 
a  full  disclosure  of  all  the  measures,  demands,  or  eventual  concessions  which 
may  have  been  proposed  or  contemplated  would  be  extremely  impolitic;  for 
this  might  have  a  pernicious  influence  on  future  negotiations,  or  produce 
immediate  inconveniences,  perhaps  danger  and  mischief,  in  relation  to  other 
powers.  The  necessity  of  such  caution  and  secrecy  was  one  cogent  reason 
for  vesting  the  power  of  making  treaties  in  the  President,  with  the  advice 
and  consent  of  the  Senate,  the  principle  on  which  that  body  was  formed 
confining  it  to  a  small  number  of  members."  (Washington's  Message  to 
the  House  of  Representatives,  March  30,   1796,  Richardson,  op.  cit.,  p.  194.) 


FOREIGN  RELATIONS  IN  PRACTICE.  365 

was  restated  by  De  Tocqueville,  who,  because  he  doubted  the  abihty 
of  democracy  to  achieve  this  concentration,  doubted  its  capacity  to 
cope  with  foreign  affairs. 

"  As  for  myself,"  he  said,  "  I  have  no  hesitation  in  avowing  my  con- 
viction, that  it  is  more  especially  in  the  conduct  of  foreign  relations  that 
democratic  governments  appear  to  me  to  be  decidedly  inferior  to  govern- 
ments carried  on  upon  different  principles.  Foreign  politics  demand  scarcely 
any  of  those  qualities  which  a  democracy  possesses,  and  they  require  on 
the  contrary  the  perfect  use  of  almost  all  those  faculties  in  which  it  is  de- 
ficient. .  .  .  Democracy  is  unable  to  regulate  the  details  of  an  important 
undertaking,  to  persevere  in  a  design,  and  to  work  out  its  execution  in  the 
presence  of  serious  obstacles.  It  cannot  combine  its  measures  with 
secrecy  and  it  will  not  await  their  consequences  with  patience.  These  are 
qualities  which  more  especially  belong  to  an  individual  or  to  an  aristocracy 
and  they  are  precisely  the  means  by  which  an  individual  people  attains  to 
a  predominant  position."  i^ 

But  lest  the  apologist  of  the  "  Ancient  Regime "  be  thought 
biased,  let  us  hear  a  recent  writer  of  a  different  school.  Mr.  Walter 
Lippmann  thus  discusses  the  uses  of  a  king:^'^ 

"  The  reason  why  we  trust  one  man,  rather  than  many,  is  because  one 
man  can  negotiate  and  many  men  can't.  Two  masses  of  people  have  no 
way  of  dealing  with  each  other.  .  .  .  The  American  people  cannot  all  seize 
the  same  pen  and  indite  a  note  to  sixty-five  million  people  living  within 
the  German  Empire.  .  .  .  The  very  qualities  which  are  needed  for  negoti- 
ation— quickness  of  mind,  direct  contact,  adaptiveness,  invention,  the  right 
proportion  of  give  and  take — are  the  very  qualities  which  masses  of  people 
do  not  possess." 

264.  Practice  in  American  History. 

As  practice  is  the  best  evidence  of  what  Constitutions  are,  so 
history  is  the  best  evidence  of  what  institutions  must  become,  if 

i«  Democracy  in  America,  N.  Y.,  1862,  i :  254. 

1^  The  Stakes  of  Diplomacy.  2d  ed.,  1917,  pp.  26,  29.  See  also  remarks  of 
Senator  Spooner,  of  Wis.,  in  Senate,  January  23,  1906:  "The  conduct  of 
our  foreign  relations  is  a  function  which  requires  quick  initiative,  and  the 
Senate  is  often  in  vacation.  It  is  a  power  that  requires  celerity.  One  course 
of  action  may  be  demanded  tonight,  another  in  the  morning.  It  requires 
also  secrecy;  and  that  element  is  not  omitted  by  the  commentators  on  the 
Constitution  as  having  been  deemed  by  the  framers  of  the  most  vital  im- 
portance. It  is  too  obvious  to  make  elaboration  pardonable."  (Cong. 
Rec,  40:  1420;  quoted  Corwin,  op.  cit.,  p.  176.)  See  also  Sen.  Doc.  No.  56, 
54th  Cong.,  2d  Sess.,  pp.  6-18;  Reinsch,  World  Politics,  1900,  p.  334;  Heatley, 
op.  cit.,  p.  71. 


366     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

they  are  to  perform  their  functions.  "  Even  democratic  countries 
like  France  and  England,"  says  Bryce,  "  are  forced  to  leave  foreign 
affairs  to  a  far  greater  degree  than  home  affairs  to  the  discretion 
of  the  ministry  of  the  day."  ^^  The  Greek  city  states  in  which  diplo- 
macy by  mass  meeting  led  to  disaster  when  confronted  by  the  as- 
tuteness of  Philip  of  Macedon  are  the  exception  which  proves  the 
rule.^"  Thus,  in  the  United  States  when  foreign  problems  have 
come  to  the  front,  concentrated  authority  has  been  developed  to  cope 
With  them.  In  the  first  period  from  1789  to  1829  foreign  relations 
were  complex.  Presidents  were  chosen  because  of  their  experience 
in  diplomacy,  and  they  displayed  competence  and  leadership.  There 
was  friction  but  in  all  cases  until  the  last, — John  Quincy  Adams's 
policy  with  reference  to  the  Panama  congress, — the  President's  pol- 
icy prevailed.  In  the  second  period  which  extended  from  1829  to 
1898  our  problems  were  mainly  domestic.  In  these  Congress  as- 
sumed a  leadership  and  though  Presidents  continued  to  assert  their 
prerogative  in  foreign  affairs,  opportunities  were  only  occasional 
and  defeats  were  frequent.  Presidents  were  chosen  for  political 
availability,  not  for  ability  or  experience,  and  the  Senate's  power 
of  vetoing  treaties  was  strengthened  by  frequent  exercise.  In  his 
"Congressional  Government,"  presented  as  a  doctor's  thesis  in  1885, 
Woodrow  Wilson  generalized  the  progress  of  this  period  as  fol- 
lows :  20 

"  In  so  far  as  the  President  is  an  executive  officer  he  is  the  servant  of 
Congress;  and  the  members  of  the  Cabinet,  being  confined  to  executive  func- 
tions, are  altogether  the  servants  of  Congress. 

"  Party  government  can  exist  only  when  the  absolute  control  of  ad- 
ministration, the  appointment  of  its  officers  as  well  as  the  direction  of  its 
means  and  policy  is  given  immediately  into  the  hands  of  that  branch  of 
the  government  whose  power  is  paramount,  the  representative  body. 

"  No  one,  I  take  it  for  granted,  is  disposed  to  disallow  the  principle 
that  the  representatives  of  the  people  are  the  proper  ultimate  authority  in 
all  matters  of  government  and  that  administration  is  merely  the  clerical  part 
of  government.    Legislation  is  the  originating  force.    It  determines  what  shall 


IS  American   Commonwealth,   2d   ed.,    i :   218.     See   also  Reinsch,   World 
Politics,  p.  329. 
1^  Ibid.,  1 :  217. 
2"  Congressional  Government,  isth  ed.,  pp.  266,  273-274. 


FOREIGN  RELATIONS  IN  PRACTICE.  367 

be  done;  and  the  President,  if  he  cannot  or  will  not  stay  legislation  by 
the  use  of  his  extraordinary  power  as  a  branch  of  the  legislature,  is  plainly 
bound  in  duty  to  render  unquestioning  obedience  to  Congress.  .  .  .  The 
principle  is  without  drawback  and  is  inseparably  of  a  piece  with  all  Anglo- 
Saxon  usage;  the  difficulty,  if  there  be  any,  must  lie  in  the  choice  of  means 
whereby  to  energize  the  principle.  The  natural  means  would  seem  to 
be  the  right  on  the  part  of  the  representative  body  to  have  all  the  executive 
servants  of  its  will  under  its  close  and  constant  supervision,  and  to  hold 
them  to  a  strict  accountability;  in  other  words,  to  have  the  privilege  of 
dismissing  them  whenever  their  service  became  unsatisfactory." 

The  third  period  began  with  the  Spanish  War  of  1898.  Our 
foreign  relations  have  increased  in  complexity  and  with  them  the 
President's  power  and  influence;  but  because  of  the  enlarged  sense 
of  senatorial  prerogative,  developed  through  three-quarters  of  a 
century  of  comparative  diplomatic  isolation,  friction  has  been  ex- 
treme.^^  Woodrow  Wilson,  now  professor  of  politics  at  Princeton 
University,  wrote  a  preface  for  the  15th  edition  of  his  book  in 
1900.^^ 

"  Much  the  most  important  change  to  be  noticed  is  the  result  of  the 
war  with  Spain  upon  the  lodgment  and  exercise  of  power  within  our  federal 
system ;  the  greatly  increased  power  and  opportunity  for  constructive  states- 
manship given  the  President,  by  the  plunge  into  international  politics  and 
into  the  administration  of  distant  dependencies,  which  has  been  that  war's 
most  striking  and  momentous  consequence.  When  foreign  affairs  play  a 
prominent  part  in  the  politics  and  policy  of  a  nation,  its  Executive  must  of 
necessity  be  its  guide;  must  utter  every  initial  judgment,  take  every  first  step 
of  action,  supply  the  information  upon  which  it  is  to  act,  suggest  and  in 
large  measure  control  its  conduct. 

"  It  may  be,  too,  that  the  new  leadership  of  the  Executive,  inasmuch  as  it 
is  likely  to  last,  will  have  a  very  far-reaching  effect  upon  our  whole  method 
of  government.  It  may  give  the  heads  of  the  executive  departments  a  new 
influence  upon  the  action  of  Congress.  It  may  bring  about,  as  a  conse- 
quence, an  integration  which  will  substitute  statesmanship  for  government 
by  mass  meeting.     It  may  put  this  whole  volume  hopelessly  out  of  date." 

Where  the  President  has  acted  in  domestic  administration,  he 
has  acted  within  limits,  narrowly  defined  by  Congress,  and  as  time 
has  gone  on,  his  discretion  in  this  field  has  become  less  and  less. 
Where,  on  the  contrary,  he  has  acted  in  foreign  affairs,  his  discre- 
tion has  been  very  wide,  and  Congress  has  generally  followed  his 

21  Reinsch,  American  Legislatures,  p.  95  i  Willoughby,  op.  cit.,  p.  460. 

22  Congressional  Government,  pp.  xi-xiii. 


368     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

lead.  "  The  Senate,"  says  Carl  Russell  Fish,  speaking  of  the  period 
since  1898,  "has  been  confined  to  checking  or  modifying  the  policy 
of  the  administration.  The  direction  of  policy  has  been  with  the 
executive."  "  Can  we  not  assume  that  the  result  of  over  a  century 
of  experience  under  the  Constitution  illustrates  certain  necessities 
in  an  adequate  control  of  foreign  affairs?^* 

265.  Constitutional  Change  Not  Necessary. 

Our  system  for  controlling  foreign  relations  has  been  copied 
in  its  main  outlines  on  the  continent  of  Europe,  and  its  adoption 
has  been  suggested  as  a  reform  worth  considering  in  England.  It 
has  in  it  elements  making  for  concentration  of  authority  in  an 
emergency,  yet  it  assures  control  by  the  people's  representatives  of 
permanent  obligations.  More  than  all  we  are  used  to  it.  Remem- 
bering Montaigne's  warning  that  "  all  great  mutations  shake  and 
disorder  a  state,"  ^^  we  may  question  the  advisability  of  radical 
change  in  the  Constitution. 

266.  Need  of  Constitutional  Understandings. 

Improvement  lies  not  in  structural  change  in  our  organs  for  con- 
trol of  foreign  relations,^^  but  in  the  development  of  understandings 

23  American  Diplomacy,  N.  Y.,  1916,  p.  428;  see  also  Reinsch,  World 
Politics,  p.  337. 

2*  Corwin,  op.  cit.,  p.  207. 

25  Montaigne,  Essays,  Cotton,  ed.,  2:  760. 

28  The  writer  is  inclined  to  believe  that  a  change  in  the  treaty  power  from 
two-thirds  of  the  Senate  to  a  majority  of  both  houses  would  be  an  improve- 
ment. This  would  be  in  accord  with  the  practice  of  most  continental  Euro- 
pean governments.  It  would  obviate  the  complaint  of  the  House  of  Repre- 
sentatives and  eliminate  the  ever  present  possibility  of  inability  to  execute  a 
treaty,  valid  at  international  law,  because  of  refusal  of  the  House  to  agree  to 
appropriations  or  necessary  legislation.  It  would  also  make  deadlocks  less 
frequent.  One  party  is  much  more  likely  to  control  a  majority  of  both 
houses  than  two-thirds  of  the  Senate.  The  main  objection  of  the  fathers  to 
submission  to  the  House  was  on  the  score  of  secrecy,  and  this  has  frequently 
been  abandoned  by  the  Senate  in  recent  years.  This  change,  which  would,  of 
course,  require  a  constitutional  amendment,  would  make  the  treaty-making 
power  the  same  as  the  legislative  power,  except  that  the  President  would  have 
the  sole  initiative,  and  retaining  an  ultimate  decision  on  ratification,  would 
have  an  absolute  veto.  See  also  J.  T.  Young,  The  New  American  Movement, 
N.  Y.,  1915,  p.  25.  and  former  Representative  and  Governor  of  Massachusetts, 
S.  W.  McCall,  "Of  the  Senate"  and  "Again  the  Senate,"  Atlantic  Monthly. 
Oct.,  1903,  and  Sept.,  1920. 


FOREIGN  RELATIONS  IN  PRACTICE.  369 

for  the  smooth  interaction  of  the  independent  departments  of  govern- 
rnent.-^^  Lord  John  Russell  remarked  that  "  political  constitutions  in 
which  different  bodies  share  the  supreme  power  are  only  enabled  to 
exist  by  the  forbearance  of  those  among  whom  this  power  is  dis- 
tributed." 2'  It  is  a  famihar  thought  and  has  been  developed  in 
detail  by  Professor  Dicey,  who  distinguishes  the  conventions  or 
understanding  from  the  law  of  the  British  Constitution.  The  former 
explain  how  the  independent  organs  of  the  supreme  power,  King. 
Lords  and  Commons,  shall  exercise  their  discretion,  i.e.,  how  the 
Crown  shall  exercise  its  prerogative  and  the  Houses  of  Parliament 
their  privileges.  He  believes  that  in  England  these  conventions  have 
grown  up  so  as  to  assure  the  ultimate  triumph  of  the  will  of  the 
political  sovereign,  i.e.,  the  majority  of  the  voters  for  members  of 
the  House  of  Commons.^* 

In  the  eighteenth  century  the  British  Constitution,  though  per- 
haps organized  to  preserve  liberty,  as  Montesquieu,  De  Lolme  and 
Blackstone  thought,  was  a  jarring  and  jangling  instrument.  There 
was  little  of  smoothness  in  the  relations  of  George  III,  his  ministers 
and  his  parliaments.  The  United  States  Constitution  is  now  in 
that  condition.  We  have  good  institutions  but  we  have  not  yet  de- 
veloped constitutional  manners  which  will  make  them  work  like  a 
well-ordered  dinner  party.  The  crudity  of  Jefferson's  pell  mell 
banquet  and  Jackson's  Peggy  O'Neil  cotillion  persists  in  the  rela- 
tions of  the  departments  of  government. 

Our  conventions  will  not  be  those  of  England.  In  the  conduct 
of  domestic  affairs,  our  system  of  legally  enforceable  limitations, 
upon  power  rather  than  the  EngUsh  system  of  unlimited  power, 
subject  to  immediate  political  responsibility  for  its  exercise,  is  likely 
to  persist.  We  will  continue  to  rely  upon  legal  responsibility,  rather 
than  political  responsibility  as  in  England,  or  administrative  respon- 
sibility as  on  the  continent  of  Europe.  In  short,  the  object  of  the 
conventions  and  understandings  which  we  will  develop  will  be  the 
ultimate  triumph  of  the  people  acting  through  the  constitution- 
amending  process,  not  as  in  England,  the  people  acting  through  an 
election  to  the  House  of  Commons. 


26a  See  Appendix  B,  p.  375. 

27  Quoted,  Wilson,  Cong.  Govt.,  15th  ed..  p.  242. 

"  Dicey,  The  Law  of  the  Constitution,  8th  ed.,  Chap.  XIV. 


370     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

In  the  conduct  of  foreign  affairs,  however,  there  will  probably 
be  a  closer  approximation  in  the  two  countries.  At  present  parlia- 
mentary control  does  not  exist  in  the  British  foreign  of^ce"^  any 
more  than  constitutional  limitations  check  the  President's  control 
of  foreign  relations.^"  In  foreign  affairs  neither  a  daily  question- 
ing under  threat  of  ousting  from  office,  nor  a  judicially  interpreted 
confinement  to  constitutional  powers  has  proved  feasible.  Until 
international  organization  is  much  further  developed,  great  discre- 
tion must  be  vested  in  a  single  head.  Acts  involving  assumptions 
of  national  responsibility  must  be  final.  Under  present  conditions 
we  must  frankly  recognize  executive  leadership  in  foreign  affairs. 
But  we  must  attempt  to  develop  understandings  so  that  the  Presi- 
dent's wide  discretion  will  only  be  exercised  after  the  most  careful 
consideration  possible,  and  in  a  way  which  will  make  the  employment 
of  a  senatorial  or  congressional  veto  an  extreme  rarity,  and  an  im- 
peachment a  virtual  impossibility.  Such  understandings  might  de- 
velop through : 

1.  Declaration  by  Congress  of  permanent  policies,  not  in  any 
way  restricting  executive  methods,  but  pointing  the  general  ends 
toward  which  the  President  should  direct  his  effort ;  ^^ 

2.  Development  by  treaty  of  international  organization  and  ar- 
bitration so  as  to  bring  as  large  a  portion  of  diplomacy  as  possible 
under  the  control  of  recognized  principles  of  international  law,  an 
atmosphere  in  which  democratic  institutions,  and  particularly  Amer- 
ican institutions,  have  always  thriven  ;  ^^ 

^^  See  remarks  of  A.  J.  Balfour  and  Premier  Asquith  to  Select  Committee 
of  the  House  of  Commons  on  Procedure,  1914  (Report  378),  printed  in 
Ponsonby,  op.  cit.,  Appdx.  i,  p.  121  et  seq.  See  also  ibid.,  p.  45  et  seq., 
Heatley,  op.  cit.,  pp.  68-70,  265,  and  supra,  note  18. 

30  See  H.  J.  Ford,  "  The  War  and  the  Constitution,"  and  "  The  Growth 
of  Dictatorship,"  Atlantic  Monthly,  Oct.,  1917,  and  May,  1918,  and  supra, 
sec.  68. 

31  Supra,  sec.  204. 

32 "  Democracies  are  absolutely  dependent  for  their  existence  upon  the 
preservation  of  law.  Autocracies  can  give  commands  and  enforce  them. 
Rules  of  action  are  a  convenience,  not  a  necessity,  for  them.  On  the  other 
hand,  the  only  atmosphere  in  which  a  democracy  can  live  between  the  danger 
of  autocracy  on  one  side  and  the  danger  of  anarchy  on  the  other  is  the 


FOREIGN  RELATIONS  IN  PRACTICE.  371 

3.  Observance  by  the  independent  departments  of  government 
of  the  understanding  that  toleration,  consideration,  and  respect 
should  grace  the  exercise  of  powers  which  may  collide  with  the 
powers  of  other  departments,  which  may  need  supplementing  by  the 
action  of  other  departments,  or  which  may  be  indispensable  for  the 
meeting  of  international  responsibilities.^^  Finally,  as  a  necessary 
condition  of  such  observance ; 

4.  Maintenance  of  close  informal  relations  between  the  agencies 
of  the  government  having  to  do  with  foreign  affairs.  Such  rela- 
tions now  exist  between  the  President  and  the  administrative  depart- 
ments represented  in  the  Cabinet.  Why  should  not  the  Cabinet  be 
enlarged  so  as  to  include  representatives  of  the  legislative  branch? 
The  Vice-President,  who  is  closely  in  contact  with  the  Senate,  has 
been  added  by  President  Harding.  But  a  more  genuine  congres- 
sional point  of  view  could  be  gained  by  admitting  also  the  Speaker 
of  the  House,  President  pro  tem.  of  the  Senate,  and  perhaps  the 
Chairman  of  the  House  Committee  on  Foreign  Affairs  and  the  Sen- 
ate Committee  on  Foreign  Relations.  The  President,  sitting  with 
these  five  officials,  together  with  the  Secretaries  of  State,  Treasury, 
War,  Navy,  Commerce  and  the  Attorney-General,  would  form  a 
Cabinet  capable  of  reaching  decisions  on  foreign  affairs  likely  to 
secure  cooperation  from  all  departments  of  the  government  and  yet 
not  too  large  to  do  business.^* 

Closer  relations  might  also  be  estabhshed  by  the  President  with 
Congress  and  especially  with  the  Senate  through  personal  delivery 
of  messages  and  explanations  of  his  policy,  but  always  at  his  ini- 
tiative.^^ The  present  practice,  whereby  Congress  does  not  "  di- 
rect "  the  Secretary  of  State  to  submit  papers  and  information  as  it 

atmosphere  of  law.  .  .  .  The  conception  of  an  international  law  binding  upon 
the  governments  of  the  world  is,  therefore,  natural  to  the  people  of  a  democ- 
racy, and  any  violation  of  the  law  which  they  themselves  have  joined  in 
prescribing  is  received  with  disapproval,  if  not  with  resentment."  E.  Root, 
The  Effect  of  Democracy  on  International  Law,  Proc.  Am.  Soc.  Int.  Law, 
1917,  pp.  7-8. 

33  Supra,  sec.  244. 

3*  The  writer  owes  this  suggestion  to  Professor  John  A.  Fairlie. 

35  "  Rule  XXXVI  of  the  Standing  Rules  of  the  Senate  still  provides  the 
manner  in  which  the  President  is  to  meet  the  Senate  in  executive  session. 
Henry  Cabot  Lodge,  in  referring  to  the  recognition  in  this  rule  of  the  right 


372     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 

does  other  cabinet  officers  but  requests  the  real  head  of  the  depart- 
ment, the  President  of  the  United  States,  "to  submit  matters  if,  in 
his  judgment,  not  incompatible  with  the  public  interest,"  must  be 
maintained.^*' 

Finally,  close  informal  relations  between  the  President  and  con- 
gressional committees  on  foreign  affairs  should  exist,  here  again 
at  the  President's  initiative.  President  Madison  was  right,  as  Sen- 
ator Lodge  pointed  out  in  1906,  in  refusing  to  receive  a  Senate  com- 
mittee sent  on  command  of  that  body  to  interview  him  with  refer- 
ence to  an  appointment  of  a  minister  to  Sweden. ^^  But  the  Pres- 
ident should  often  invite  such  committees  to  discuss  with  him.^® 
Thus,  without  limiting  the  President's  power  in  foreign  relations, 
or  in  any  way  impairing  his  capacity  to  take  speedy  action  when 
necessary,  we  might  develop  understandings  which  would  show  him 
how  he  ought  to  exercise  his  discretion — understandings  sanctioned 
in  last  analysis  by  the  possibility  of  Senate  or  congressional  veto  of 
his  measures,  defeat  of  his  party  in  the  next  election,  or  even  im- 
peachment. 

Though  this  essay  has  dealt  with  constitutional  law  and  consti- 
tutional understandings,  it  must  be  emphasized  that  the  system  is  not 
the  most  important  part  of  government.  Any  system  will  work 
with  big  men.^^     It  is  the  merit  of  the  British  system  that  it  throws 

of  the  President  to  meet  with  the  Senate  in  consideration  of  treaties,  said  in 
the  United  States  Senate,  January  24,  1906:  'Yet  I  think  we  should  be  dis- 
posed to  resent  it  if  a  request  of  that  sort  was  made  to  us  by  the  President.' 
Cong.  Rec,  59th  Cong.,  ist  sess.,  1470"  (Crandall,  op.  cit.,  p.  68,  note  5). 
But  see  remarks  of  Senator  Bacon,  supra,  sec.  176.  President  Wilson  revived 
the  custom  in  abeyance  since  the  time  of  John  Adams  of  appearing  in  person 
before  Congress  for  the  delivery  of  formal  messages. 

^^  Supra,  sec.  234. 

37  "  In  the  administration  of  Mr.  Madison  the  Senate  deputed  a  committee 
to  see  him  in  regard  to  the  appointment  of  a  minister  to  Sweden,  and  he 
replied  that  he  could  recognize  no  committee  of  the  Senate,  that  his  relations 
were  exclusively  with  the  Senate."  Senator  Lodge  of  Massachusetts,  Jan.  23, 
1906,  Cong.  Rec,  40:  1420,  quoted  Corwin,  op.  cit.,  pp.  174-175. 

^^  Supra,  sec.  176.  A  recent  illustration  is  President  Wilson's  offer  to 
discuss  the  treaty  of  Versailles  with  the  Senate  Foreign  Relations  Committee, 
an  offer  which  resulted  in  several  conferences  in  the  White  House  during  the 
summer  of  1919.     See  66th  Cong.,  1st  sess..  Sen.  Doc.  106,  p.  499  et  seq. 

^°  "  Constitute  government  how  you  please,  infinitely  the  greater  part  of 
it  must  depend  upon  the  exercise  of  powers  which  are  left  at  large  to  the 


FOREIGN  RELATIONS  IN  PRACTICE.  373 

big  men  to  the  top.     The  United  States  must  develop  political  tradi- 
tions and  methods  that  will  do  the  same.^"     The  people  and  parties 
must  insist  on  men  of  experience  and  tried  capacity  as  candidates. 
For  the  conduct  of  foreign  relations,  the  personnel  of  the  Presidency, 
the  Secretaryship  of  State  and  the  Senate  are  especially  important. 
The  Senate  might  well  have  more  members  with  executive  and  ad- 
ministrative experience  as  did  the  Senate  of  ancient  Rome.     Why 
not  retain  the  services  of  ex-Presidents  and  Secretaries  by  electing 
them  to  the  Senate  ?  *^     Conversely,  Secretaries  of  State  might  well 
be  chosen  from  men  of  legislative,  especially  senatorial,  experience.*^ 
Finally,  the  President  on  whom  falls  final  responsibility  for  leading 
the  separated  and  often  antagonistic  agencies  of  government  to  the 
goal  of  a  successful  foreign  policy  should  not  be  a  dark  horse.     Why 
not  develop  traditions  of  advancement,  as  from  a  governorship  to  the 
Senate,  then  to  the  Vice-Presidency,  or  to  the  Cabinet,  and  finally 
to  the   Presidency.     It   was   done  in  the   first   forty  years   of   our 
national  history.*^     It   would  lead  bigger  men  to  the   Senate  and 
Cabinet.     It  would  insure  capacity  and  popular  confidence  in  the 
President. 

prudence  and  uprightness  of  ministers  of  state.  Even  all  the  use  and  potency 
of  the  laws  depends  upon  them.  Without  them  your  Commonwealth  is  no 
better  than  a  scheme  upon  paper;  and  not  a  living,  active,  effective  organiza- 
tion."    Edmund  Burke. 

40Reinsch,  World  Politics,  pp.  340-346. 

*i  There  have  been  some  notable  examples  of  this  in  recent  years,  such  as 
Senators  Root  and  Knox. 

*2"From  Monroe's  Secretaryship  of  State  in  1811,  down  to  the  resigna- 
tion of  Mr.  Blaine,  that  position  was  held  constantly  by  men  who  had  been 
United  States  Senators,  with  the  exception  of  brief  interregna,  covering  alto- 
gether less  than  one  and  a  half  years,  and  with  the  exception  of  William  M. 
Evarts,  who  became  a  Senator  later  in  his  career.  Since  the  resignation  of 
Mr.  Blaine  an  entirely  new  system  has  come  into  use.  Senators  Sherman  (and 
Knox)  being  the  only  Secretaries  of  State  who  had  also  been  members  of 
the  Senate.  Under  these  circumstances,  it  is  not  surprising  that  there  should 
have  been  more  friction  between  the  President  and  the  Senate^  on  foreign 
matters  than  existed  during  the  earlier  years  of  our  nation's  life."  (Reinsch, 
Am.  Legislatures,  p.  95,  quoted  in  Willoughby,  op.  cit.,  p.  460.) 

«For  table  showing  the  experience  of  American  Presidents,  see  Am. 
Pol.  Set.  Rev.,  15:  25.  Wilson  (Congressional  Government,  pp.  251-256) 
refers  to  the  tendency  of  the  governorship  rather  than  membership  in  the 
Senate  or  House  to  be  in  the  line  of  promotion  to  the  presidency. 


APPENDIX  A. 

Congressional  Delegation  of  Power  to  Make  International 

Agreements.^ 

The  above  heading  may  occasion  criticism.  Thus  Professor  J.  B, 
Moore  is  incHned  to  think  that  "no  'delegation'  of  power  whatever 
is  involved  in  the  matter." 

"  As  Congress  possess  no  power  whatever  to  make  international  agree- 
ments," he  continues,  "  it  has  no  such  power  to  delegate.  All  that  Congress 
has  done  in  the  cases  referred  to  is  to  exercise  beforehand  that  part  of  the 
function  belonging  to  it  in  the  carrying  out  of  a  particular  class  of  interna- 
tional agreements.  Instead  of  waiting  to  legislate  until  an  agreement  has  been 
concluded  and  then  acting  on  the  agreement  specifically,  Congress  has  merely 
adopted  in  advance  general  legislation  under  which  agreements,  falling  within 
its  terms,  become  effective  immediately  on  their  conclusion  or  their  procla- 
mation." 2 

It  is  true  that  Congress  has  no  agreement  making  power  to  dele- 
gate,^ but  it  is  also  true  that  in  fields  covered  by  Congressional  legis- 
lation the  President  can  not  make  an  agreement  until  Congress  has 
passed  an  authorizing  act.*  Treaties  will  supersede  earlier  legisla- 
tion, but  this  force  has  never  been  attributed  to  executive  agreements. 
In  the  type  of  subject  matter  here  involved  an  agreement  is  necessarily 
.both  an  international  bargain  and  a  national  regulation.  Now,  while 
Congress  has  no  power  to  make  an  international  bargain,  it  does  have 
power  to  regulate  postal  service,  copyrights,  tariffs,  etc.  Strictly  it 
is  this  power  to  make  regulations  within  the  scope  of  general  laws 
which  it  delegates  to  the  President  and  not  the  power  to  make  bar- 
gains with  foreign  nations,  but  since  in  dealing  with  matters  of 
domestic  administration  within  the  power  of  Congress  the  two  are 
inextricably  connected,  the  result  in  this  field  is  the  same  as  though 
the  power  to  make  the  agreement  flowed  wholly  from  the  Congres- 
sional act.  It  has  therefore  seemed  least  misleading  to  adhere  to  the 
usage  suggested  both  by  custom  and  the  language  of  Congressional 
acts. 


1  See  section  6i. 

2Proc.  Am.  Phil.  Soc,  Minutes,  60:  XV. 

^  Supra,  sec.  159. 

•*  Supra,  sec.  162. 

375 


APPENDIX  B. 

Constitutional  Understandings.^ 

Professor  J.  B.  Moore  has  pointed  out  that  "  so-called  constitu- 
tional understandings  are  logically  much  more  of  the  essence  of 
things  under  the  British  system  than  under  the  American  system," 
noting  the  analogy  of  the  former  constitution  to  the  common-law 
system  of  private  rights  established  by  gradually  developing  judicial 
precedents  and  of  the  latter  constitution  to  the  civil-law  system  estab- 
lished by  formal  code.^  "Just  as  the  British  Constitution,"  said 
Gladstone,  "  is  the  most  subtle  organism  which  has  proceeded  from 
progressive  history,  so  the  American  Constitution  is  the  most  wonder- 
ful work  ever  struck  off  at  a  given  time  by  the  brain  and  purpose  of 
man."  ^  The  same  contrast  has  been  noted  by  Bryce  in  his  contrast 
of  "  rigid  "  and  "  flexible  "  constitutions.*  Without  questioning  the 
value  of  this  contrast  many  writers  have,  however,  dwelt  upon  the 
"flexibility"  of  the  "rigid"  American  Constitution  due  to  "consti- 
tutional understandings."  ^ 


1  See  section  266. 

2Proc.  Am.  Phil.  Soc,  Minutes,  60:  XIV. 

3  Fisk,  Critical  Period  of  American  History,  p.  264. 

^  Bryce,  Studies  in  History  and  Jurisprudence,  i :  139  et  seq. 

^  Wilson,  Congressional  Government,  1885,  pp.  7-9,  Constitutional  Gov- 
ernment, in  the  United  States,  1908,  p.  57;  Bryce,  American  Commonwealth, 
ed.  1891,  i:  390;  Beard,  American  Government,  ed.  1910,  p.  60;  Munro,  Gov- 
ernment of  the  United  States,  1919,  p.  57;  Wright,  The  Understandings  of 
International  Law,  Am.  Journ.  Int.  Law,  14:  578-580. 


376 


INDEX 


Abrogation  of  treaty.  (See  Treaty.) 
Act  of   Congress : 

Authority  of  President  to  use 
force  under,  308. 

Construed  in  accord  with  inter- 
national law,  165. 

Enforcement  of  international 
law  by,   186-187. 

Ignored  by  President,  341. 

Insuflficiency  of,  to  meet  all  in- 
ternational responsibilities,  185- 
i8g. 

Limitation    of    state    powers   by, 

74. 

Provisos  in  deference  to  inter- 
national law  and  treaty,  163- 
164. 

Publication  of,  31. 

Source  of  Federal  criminal 
jurisdiction,    199. 

Subject  to  international  cogni- 
zance, 30,  32,  40. 

Supersedes  customary  interna- 
tional law,  174. 

Supersedes     earlier    treaty,     162, 

345. 

Superseded  by  later  treaty,   164. 

Superseded  by  arbitration  award, 
no. 

Vetoed  by  President  because 
violative  of  treaty,  164-165. 

When  effective,  31,   199. 
Acts  of  Congress  referred  to: 

Alien  enemies,  86,  303. 

Alien  exclusion  and  expulsion, 
83,  188,  303,  304. 

Alien  landholding,    163-164. 

Annexation  of  territory,  275. 

Anti-trust,   165. 

Appreciation  of  foreign  compli- 
ments, 278. 

Appropriation  for  international 
claims,  66,  226. 


Arming  of  merchant  vessels, 
294-295. 

Arms  trade,  184. 

Authorizing  arbitration,  281,  283. 

Authorizing  armament  limita- 
tion conference,  278,  282. 

Authorizing  executive  agree- 
ments,  105,   106. 

Authorizing      intervention,      271, 

297. 
Authorizing    participation    in    in- 
ternational    organization,     228, 

334. 

Authorizing  President  and 
Courts  to  meet  international 
responsibilities,    100. 

Authorizing  treaty  negotiation, 
248. 

Authorizing  use  of  force,  167, 
186,   192,  296,  297. 

Cable  landing,  302. 

Canal  tolls,  163. 

Chinese  exclusion,  83,  261,  345. 

Citizenship,  277. 

Copyrights,   105. 

Declaration  of  war,  286,  289. 

Diplomatic  immunities,   163,   167. 

Draft,  163. 

Enforcement  of  consular  awards, 
185. 

Enforcement  of  treaties,  74. 

Embargo  and  non-intercourse, 
301-302. 

Expatriation,   277-281. 

Extradition,  184,  194. 

Forbidding  Presidential  partici- 
pation in  international  confer- 
ences, 325.  328,  335- 

Fulfillment  of  guarantees,  227. 

Guano  islands,  134,  I73,  274. 

International  navigation  rules, 
181. 


377 


378     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


Jurisdiction    in   Bering   Sea,    164, 

165,  174.  345- 

Jurisdiction  of  Federal  courts, 
170,   198. 

Migratory  birds,  87. 

Militia,  94. 

Navigation  and  shipping,  84,  163, 
258,  281,  345. 

Neutrality,   74,    181,   295. 

Offenses  against  diplomatic  offi- 
cers, 180. 

Offenses  against  foreign  cur- 
rency,   182. 

Offenses  against  international 
boundaries,   183. 

Offenses  against  international 
law,  87,  179-184,  356. 

Offenses  against  resident  aliens, 
180. 

Offenses  against  treaties,  184- 
186. 

Offenses   at  sea,   165. 

Offenses  in  foreign  countries, 
183. 

Oil  leases,  301. 

Organization  of  diplomatic  and 
consular   services,   167. 

Organization  of  military  and 
naval  services,   167. 

Patents,    105. 

Piracy,  180. 

Postal  service,  105. 

Presentation  of  claims,  22,  29. 

Prize  money,  345. 

Prizes,   164,   167. 

Rank  of  diplomatic  officers,  324, 
325. 

Recommending  state  enforce- 
ment of  international  law,  177, 
179,  180. 

Release  from  state  jurisdiction 
of  person  exempt  under  inter- 
national law,  161,  171,  180,  229. 

Return  of  deserting  seamen,  184. 

Retaliation,  301. 

Sedition  and  espionage,   188. 

Tariff,   106,   164. 

Tenure  of  office,  316. 

Termination  of  treaties,  256,  281. 

Trademarks,   105. 

Trading  with  the  enemy,  303. 


Treatment     of     enemy    property, 

301. 
War  power,  74. 
White  slavery,  87. 
Acts  of  government  organs,  respon- 
sibility for,  151. 
Acts  of  parliament,  when  void,  210. 
Adams,  Charles  Francis : 

On    President's   power   to   termi- 
nate treaty,  39. 
On  American  accession  to  Decla- 
ration of  Paris,  47. 
Adams,  Henry,  On  relations  of  Con- 
gress and  the  President,  361. 
Adams,  John : 

Dismissal  of   Secretary  of   State, 

On  power  to  arm  merchant  ves- 
sels, 295. 
Adams,  John  Quincy: 

On    duty    to    ratify    treaties,    43, 

252. 
On  recognition,  270,  272. 
On    relations    of    President    and 
Senate,  361. 
Admiralty     jurisdiction     of      federal 

courts,  200. 
Administrative      Agreements.      (See 

Executive  Agreements.) 
Advice,  meaning  of,  in  League  of  Na- 
tions Covenant,   114. 
Agents,    power   of    President   to    ap- 
point,  249,  315.     (See   also    Diplo- 
matic Agents.) 
Agreement : 

Determination  of  obligations  by, 

218. 
National  Obligations  founded  on, 
206,  208. 
Agreements,      international,     conclu- 
siveness  of    President's    statements 
condemning,  41. 
Alabama,    arbitration    on    "  due    dili- 
gence," 176,  177. 
Alabama,  case  of,   18. 
Alabama  claims  court,  222. 
Algeciras  general  act.     (See  Treaty.) 
Alien  enemies,  expulsion  and  intern- 
ment of,  85,  304. 
Aliens: 


INDEX. 


379 


Congressional   power   to   protect, 

88. 
Exclusion    of,   constitutional,   83, 

130.   303- 
Expulsion    of    constitutional,    83, 

303- 
Indemnity  for   injury  of,  225. 
Insufficiency  of  legislation  to  pro- 
tect, 187. 
International  law  applied  in  cases 

regarding  status  of,  172. 
Jurisdiction  of  federal  courts   in 

cases   afifecting,   201-203. 
Offenses  against  punished,  180. 
Rights  of,  170,  201. 
Source  of  power  to  exclude  and 

expel,  133. 
State     legislation     discriminating 

against,  162. 
State  power  to  protect,   154,   179. 
(See  also  Treaties.) 
Ambassador,   power  to   appoint,  325. 

(See  also  Diplomatic  Officers.) 
Amelia  Island  Case,  193,  296. 
Amendment     to     constitution.     (See 

Constitution  of  United   States.) 
Amendment    to    treaty.     (See    Trea- 
ties.) 
Amends  in  reparation,  229. 
American  Civil  War : 

Commencement  of,  288. 
Termination   of,   291. 
Anarchy,     oflfense     against     interna- 
tional law,   188. 
Annexation.     (See  Act  of  Congress, 

Territory,   Treaties.) 
Appam,  case  of,  24,  342. 
Apology,  amends  by,  229. 
Appointment    of    officers,    power    to 

make,  314. 
Appropriations,  power  to  make,  225. 
Arbitration,  International : 

Authority  to  submit  cases  to,  62, 
222,    223. 

Awards  binding,  61,  224. 
Awards     self     executing    as     to 

boundary   settlements.  226. 
Awards  supreme  law  of  the  land, 

174,  224,  245. 
Duty  to  submit  cases  to,  222. 
Effect  of  fraud,  222,.  224. 
Grounds  for  rejecting  award,  224. 


Number  of  cases  settled  by,  244. 
Submission  of  cases  to,  constitu- 
tional,  no. 
Types  of  cases  submitted  to,  215. 
(See  also  Treaty.) 
Arbitration    court,    establishment    of, 

334. 
Arbitration  Treaties,  109,  223. 

Definition     of     justiciable     ques- 
tions, 211-212. 
Not   applicable   to    third   parties, 

166. 
Senate  rejection  of,  252. 
Suggested  by  Congress,  248. 
Arguelles,  case,  78,  190,  195,  237. 
Armament  limitation  : 

Provisions  of  League  of  Nations 

Covenant,  114. 
Treaties   on,   suggested   by   Con- 
gress, 248. 
Armies,  power  to  raise,  85. 
Armistice,  240.     (See  also  Executive 

Agreement.) 
Arms  trade,  184,  191. 
Aroostook  war,  230. 
Arthur,   Chester  A.,  President,  Veto 
of  Chinese  exclusion  act,  165,  261. 
Articles  of   Confederation,   21. 

Control     of     Foreign     Relations 

under,  61,  138. 
Legislation     enforcing     interna- 
tional law  under,  177,  179,  180. 
National  powers  under,  145. 
Treaty  power  under,  43,  246. 
Assassination,  not  a  political  offense, 

189. 
Asylum,  not  permitted,  168. 
Austin,  John,  on  Nature  of  Interna- 
tional law,   210. 
Austria : 

Protest   on   President's  comment 

on  Kossuth  revolution,  36. 
Termination    of    war    with,    293. 
(See  also  Treaties.) 
Austria-Hungarj',  declaration  of  war 
against,  289. 

Bacon.  Senator,  of  Georgia : 

On   legislative  nature   of   treaty- 
making  power,  139,  140. 
On  Senate  participation  in  treaty 
negotiation,  250. 


380     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


Baldwin,    Simeon   E.,    On    power   of 
President    to    conclude    compromis 
of  arbitration,  io8. 
Barnett,    James     F.,     on     power     of 

states  to  make  agreements,  232. 
Bayard,  T.  F.,  Secretary  of  State: 
On  display  of  force,  294. 
On  international   responsibilities, 

18. 
On   power   to   interpret   political 

treaties,  215. 
On     powers     of     Congress     and 
President  to  determine  obliga- 
tions, 216. 
On  Senate  amendments  to  treaty, 

47- 

On  termination  of  war,  291. 
Belligerency: 

Distinguished    from    insurgency, 

200,  269. 
Recognition  of,  a  political  ques- 
tion, 172. 
Benton,  Thomas  Hart,  Senator  from 
Missouri : 
On  Diplomatic  Officers. 
Resolution     on     Texan    annexa- 
tion, 279. 
Bering   Sea   fisheries   case,    no,    164, 

165,  174-  343- 

Bering  Sea  fisheries  treaty,  suggested 
by  Congress,  248.  (See  also  Trea- 
ties.) 

Bernstorfif,  Count,  German  Ambas- 
sador, rebuked,  29. 

Beust,  Count,  Austrian  Chancellor, 
on  Concert  of  Europe,  319. 

Beveridge,  A.  J.,  Senator  from  Indi- 
ana: 

On  executive  nature  of   foreign 

relations  power,    137. 
On      nature      of      treaty-making 
power,  139. 

Bibb,  Senator,  of  Georgia,  on  ap- 
pointment of  diplomatic  officers, 
326-327. 

Bills  of  rights,  reason  for,  172. 

Blackstone,  Sir  William,  on  control 
of  foreign  relations,  363. 

Blaine,  James  G.,  on  Congressional 
resolutions  on   foreign  policy,  280. 

Blockade  proclamation,  effect  of,  38, 
288. 


Borchard,  E.  M. : 

On  international  court  of  claims, 

225. 
On  making  of  contracts,  41. 
On     power     of     government     to 

abandon  claims,  82. 
On  power  of  officers  to  bind  the 

state,  26. 
On     President's    power    to    use 

force  abroad,  307. 
On  responsibilities  of  states,  151. 
Boundaries : 

Demarkation  of,  232. 

Executive  agreements  regarding, 

239- 
Offenses     relating    to     punished, 

183. 
Recognition    of   changes   in,  274. 
Boxer  rebellion,  241,  285,  296. 
Brazil,  recognition  of  insurgent  navy 

of,  40. 
Breaking  diplomatic  relations.     (See 

Diplomatic  relations.) 
Brewer,  Justice : 

On    nature    of    national    powers, 

131. 
On  political  questions,  83. 
British  Empire,  International  respon- 
sibilities   of,    15.     (See   also    Great 
Britain.) 
Bryan,     William     J.,     Secretary     of 
State : 
On     irregularity     of     diplomatic 
communications   to   the   people, 
22. 
On    responsibilities    of    German 
Government        for        Prussian 
treaty,  16. 
Peace    treaties    by.     (See    Trea- 
ties.) 
Bryce,  James : 

On  cognizability  of  acts  of  Con- 
gress, 32. 
On  control  of  foreign  relations, 

366. 
On   influence   of   Senate   in   for- 
eign  affairs,  362. 
On    rigid    and    flexible    constitu- 
tions, 375. 
Burke,  Edmund,  on  discretion  in  the 
conduct  of  government,  372. 


INDEX 
(See     Treaties, 


381 


Burlingame     treaty 
China.) 

Burton,  Senator,  on  Arbitration  trea- 
ties, 112. 

Cabinet,  relation  to  President,  371. 
Cable,  power  to  regulate,  302.     (See 

also  Treaties,   Submarine  cable.) 
Calhoun,  John  C. : 

On     treaty-making     power,     loi, 

103,   121-122,  344. 
On    unitary   responsibility   under 
international  law,  25. 
Californiia-Japanese        controversies. 
(See  Japan.) 

Canadian      Waterway      Commission, 

183,  219. 
Capitulations,   240. 
Caroline  case,  206. 

Cartel,   235,    240.     (See   also   Execu- 
tive agreement.) 
Ceremonials,  obligation  of,  209. 
Cherokee    Indians.     (See    Treaties.) 
China: 

Dispatch  of  troops  to,  by  Presi- 
dent, 227. 
Reservation    to    treaty    of    Ver- 
sailles,   49.     (See    also    Trea- 
ties.) 
Chinese  exclusion  acts : 

Protected  by  China,  17,  162. 
Subject    to    international    cogni- 
zance, 32.     (See  also  Acts  of 
Congress.) 
Citizens  of  the  United  States,  defini- 
tion, 276. 
Citizenship : 

Determination  by  courts,  278. 
Recognition    by    Department    of 
state,  2TJ. 
Civil  services,  observance  of  interna- 
tional law  by,  167. 
Civil  war,  authority  to  use  force  in, 
193.     (See     also     American     Civil 
War.) 
Claims : 

Delegation    of    power    to    settle, 

220. 
Internatinnal,  82,  209. 
Law  applied  in  settling,  222. 


May  be  compromised,  82. 
May  be   presented   to   President, 
222. 

Mode  of  presentation,  23,  35,  65, 
217. 

Number  settled  by  treaty  and  ar- 
bitration,  244. 
War,    settlement    of,    by    treaty, 
220. 
Claims      court.       (See      Court      of 

Claims.) 
Claims  treaty.     (See  Treaties.) 
Clay,  Henry: 

On    recognition    power    of    Con- 
gress, 271. 
On    right    of    Senate    to    refuse 

ratification  of  treaties,  44. 
On  reprisals,  298. 
Resolution  of  recognition,  279. 
Clayton-Bulwer    treaty.     (See    Trea- 
ties, Great  Britain.) 
Cleveland,  President  Grover: 

On  Monroe  Doctrine,  39,  283. 
On   obligation    to    indemnify   in- 
jured aliens,  225. 
Urges  legislation  to  enforce  arms 
trade   treaty,    191. 
Colombia.     (See     Treaties,     Colom- 
bia.) 
Colonial  governor,  power  of,  145. 
Comancho  case,  99,  162. 
Commander-in-chief,  power  of  Presi- 
dent to  make  arrangements  as,  240. 
(See  also  President.) 
Comity  of  nations,  international  un- 
derstandings, 8,  212. 
Commerce,  power  to  control,  302. 
Commercial  treaties.     (See  Treaties.) 
Commission     of    inquiry,    power    of 
President    to    submit   controversies 
to,  219. 
Commissioners,  appointment  of,  326. 

(See  also  Diplomatic  agents.) 
Common  law: 

Certain   principles   of,  209-211. 
Obligations  under,  213. 
Jurisdiction     of     federal     courts 
under,   196-198. 


382     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


Compromis  of  arbitration : 

Power  to  make,  ic8,  222,,  236. 

Senate  participation   in,  216-217. 
(See     also     Executive     agree- 
ment.) 
Concert  of  Europe,  nature  of,  319. 
Concurrent  resolution,   ineffective  to 

denounce  treaty,  34. 
Confederate   states   of   America,   un- 
official    reception     of    mission    by 
England,   35. 
Confiscation  of  property,  169. 
Congress : 

Can  not  be  deprived  of  powers 
by  treaty,  loi. 

Can  not  bind  President  in  for- 
eign affairs,  350. 

Can  not  delegate  legislative 
power,  312. 

Can  not  delegate  power  to  au- 
thorize reprisals,  209. 

Can  not  delegate  war  power,  290. 

Can  not  exercise  judicial  or  ex- 
ecutive functions,  312. 

Can  not  make  treaties,  233. 

Checks  upon  disregard  of  inter- 
national law  by,   164. 

Concurrent  resolution  not  sub- 
ject to  international  cogni- 
zance, 2i2- 

Consent  of,  to  state  agreements, 
230. 

Control  of  federal  administra- 
tion, 235. 

Control  of  Indian  relations,  234. 

Control  of  diplomatic  officers,  61. 

Delegation  of  power  to  Presi- 
dent, 302. 

Delegation  of  power  to  make  in- 
ternational agreements,  105, 
22,2,^  236,  374. 

Duty  of  courts  to  apply  acts  of, 
350. 

Duty  of  President  to  enforce 
acts  of,  350. 

Duty  to  carry  out  Executive 
agreements,  237,  349. 

Duty  to  carry  out  military  under- 
taking of  President,  349. 

Duty  to  execute  treaties,  191, 
207. 


Incompatibility  of  membership 
in,  with  public  office,  316. 

Influence  in  foreign  relations, 
366,  370. 

Initiative  in  domestic  affairs,  148. 

May  be  deprived  of  discretion 
by  treaty,  103. 

National  obligations  to  be  deter- 
mined by,  216. 

Observance  of  international  law 
by,  162. 

Powers  concurrent  with  Presi- 
dent, 340,  341. 

Powers  concurrent  with  treaty- 
making  power,  344,  345. 

President's  official  communica- 
tions to,  subject  to  interna- 
tional cognizance,  36. 

Privileges  and  immunities  of,  96. 

Recognition  of  international  re- 
sponsibilities,   18. 

Rejection  of  resolutions  affecting 
foreign  relations,  279. 

Relation   to   President,  371. 

Resolution  of  single  house,  not 
subject  to  international  cogni- 
zance, 22- 

Veto    on    war    declaration,    149. 
(See    also    Act    of    Congress; 
Congress,    powers;    House    of 
Representatives,    Senate.) 
Congress,  powers  of,  96. 

Abrogation  of  treaty,  260. 

Annexation  of  territory,  275-276. 

Appropriations,  225. 

Cable  landing,  267. 

Commerce,  302. 

Commercial  pressure,  301. 

Conduct  of  war,  305. 

Confiscation  of  enemy  property, 
300. 

Creation  of  offices,  311. 

Criteria  of  expatriation,  277. 

Declaration  of  war,  227,  290. 
248. 

Interpretation  of  constitution, 
347- 

Intervention,  310. 

Meeting  of  international  respon- 
sibilities, 18,  100,  159. 

Naturalization,   2yy. 


INDEX. 


383 


Denunciation  of  treaty,  258. 

Enforcement  of  treaty,   185,  228. 

Extradition,  190,   195 

Foreign  relations,  138,  139,  266, 
267. 

Government  of  territory,   134. 

Imports  prohibition,  303. 

Initiation     of     treaties,     233-234, 

Organization  of  army  and  navy, 
221,   320. 

Participation  in  international  or- 
ganization, 334. 

Protection  of  resident  aliens,  88, 
187. 

Rank  of  diplomatic  officers,  324- 

325. 
Recognition,  270,  271,  273,  286. 
Reprisals,  298. 
Resolutions    on     foreign     policy, 

278-283. 
Termination  of  executive  agree- 
ments, 236. 
Termination  of  voidable  treaties, 

356. 
Termination  of  war,  292. 
Treaty  making,  261 
Use  of  force,  305. 
Conquest : 

Acquisitions  of  territory  by,  276. 
Termination  of  war  by,  291. 
Conspiracy  against  foreign  states,  188. 
Constitution  of  United  States: 

Amendments  to,   when   eflfective, 

31. 

Appeals  from  Supreme  Court  to 
international  tribunal  not  per- 
mitted by,   118. 

Compared  with  British  constitu- 
tion, 375. 

Compared  with  European  consti- 
tutions, 369. 

Controls  conduct  of  foreign  rela- 
tions, 4. 

Courts  can  not  exercise  non-judi- 
cial powers,  1 17. 

Delegation  of  legislative  power, 
prohibited,  99,  103,  312. 

Extent  to  which  knowledge  of, 
by  foreign  nations  is  presumed, 
38,  41. 


Fundamental    principles    of,    71- 

75- 

Importance   of   able   men   to   ad- 
minister, y]2,  2,12>- 

International  law  to  be  enforced 
under,  179. 

International  responsibilities  rec- 
ognized by,  18. 

Interpretation   of,   in   accordance 
with  international  law,   162. 

Motives  for  forming,  145. 

Need  of  modification  in  foreign 
relations  control,  368. 

Protects  powers  of  each  depart- 
ment, 98. 

Reasons  for  friction  in  its  opera- 
tion, 369. 

Supersedes     customary     interna- 
tional law,  174. 

Validity  of  consent  to  treaty  de- 
termined by,  26.  (See  also 
Congress,  Courts,  President, 
Separation  of  Powers,  States 
of  United  States,  Treaty-mak- 
ing power.) 
Constitutional  limitations  : 

Do  not  affect  international  re- 
sponsibilities, 17. 

Mainly  of  territorial  application, 
124. 

On  foreign  relations  power,  121, 
125. 

On  national  powers,  76. 

On  state  powers,  T})- 
Constitutional  provisions  referred  to: 

Abolition  of  slavery,  80,  301,  350. 
Administration  of  territory,  355. 
Admission    of    new    states,    130, 

275- 
Appointing   power,   98,    loi,    119, 

314-316. 

Appropriations,    104,   354. 

Citizenship,  276. 

Compulsory  process  for  obtain- 
ing witnesses,  56,  79,  Si,  162. 

Creation  of  courts,  99,  103,  312. 

Creation  of  offices  and  agencies, 
103,  311- 

Declaration  of  war,   104,  355. 

Diplomatic  officers,   14,   243,  323. 

Division  of  power  between  states 
and  nation,  ']}),   132. 


384     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


Due  process  of  law,  78,  170,  196, 

202. 
Duty  to   execute   laws,   146,   157, 

235,  305,  357- 

Executive  power  vested  in  Presi- 
dent, 95,  135,  155. 

Foreign  commerce,  302,  303. 

Grand  jury,  85. 

Guaranteed  rights  of  individuals, 

n. 

Guarantees  of  criminal  proce- 
dure, 355. 

Independence  of  judiciary,  202. 

Inviolability  of  state  territory, 
55.  57,  89,  307. 

Judicial  power,  95,  116,  158. 

Jurisdiction  of  federal  courts, 
202. 

Legislative  power  vested  in  Con- 
gress, 95,  96. 

Letters  of  marque  and  reprisal, 
298. 

Maintenance  of  courts,  15. 

Militia,  94,  304. 

Naturalization,  277. 

Necessary  and  proper  clause,  80, 
87,  155,  179,  311,  357- 

Non-suability  of  states  by  indi- 
viduals, 205. 

Offenses  against  law  of  nations, 
79,  87,  155.  179- 

Organization  of  army  and  navy, 
320. 

Organization   of  courts,  355. 

Powers  of  President,  141,  146. 

Power  to  conduct  foreign  rela- 
tions, 71. 

Power  to  meet  international  re- 
sponsibilities,  159. 

Preamble,  358. 

President's  use  of  force,  305. 

Privileges  and  immunities  of 
citizens,  306. 

Procedure  for  acts  of  Congress, 
107. 

Prohibition  of  alcoholic  bever- 
ages, 79,  162,  303. 

Raising  of  armies,  94. 

Republican  form  of  government 
in  states,  57,  307. 

Revenue  laws,  354. 


Rules  of  capture,  85. 
Separation  of  powers,  76,  95. 
States'  rights,  76,  86. 
Supreme  law  of  the  land,  5,  32, 

344. 
Treaty-making  power,  53,  246. 
Treaty  supersedes  state  laws,  162, 
Treaties  supreme  law  of  land,  57, 

y2>,  104,  172,  196,  354. 
Veto   power,    141. 
War  powers  of  national  govern- 
ment, 284. 
War  powers  of  states,  264. 
Constitutional  understandings: 

Importance  of,  8,    126,  368,  369, 

375. 
Meaning  of,  7,  8. 
Protect    exercise    of    powers    by 

each  department,  98. 
Reason  for,  339. 
On  consideration  in  exercise  of 

powers,  371. 
On    cooperation    of    independent 

organs,  346. 
On  duty  of   departments  to  act, 

357- 
On  overlapping   of   powers,  340. 
On  reserved  powers  of  states,  75, 

92. 
On  treaty  negotiations,  251. 
Sanctions  of,  372. 
Suggestions  for  development  of, 

370. 
Constitutions,    limitations    upon,    by, 

international  law,  14. 
Consular  courts : 

Do  not  exercise  judicial  powers 

of  United  States,   116. 
Need    not   accord   jury  trial,   78, 

84. 
Consular  regulations,  168. 
Consular    service,    appointments    to, 

325,  335- 
Consuls : 

International  law  applied  in  cases 

affecting,   172. 
Legislation  enforcing  awards  of 

foreign,  185. 
Contract : 

National    obligations    based    on, 

206. 
State  obligations   based  on,   205. 


INDEX. 


385 


Contractual  obligations,  responsibility 

for,  153. 
Continental  Congress,  recognition  of 

international    responsibilities,    18. 
Contributions  of  enemy  property,  299. 
Controversies,     international,     settle- 
ment   of.     (See    Arbitration,    Ex- 
ecutive     agreements,      Permanent 
Court     of     International     Justice, 
Treaties.) 
Convoys,  power  to  authorize,  295. 
Cooley,    T.    M.,    on    popular    sover- 
eignty, 72. 
Copyright  agreements.     (See  Acts  of 

Congress.) 
Corwin,  E.  S. : 

On  concurrent  powers  of  depart- 
ments, 341. 
On  Congressional  resolutions  on 

foreign  policy,  281. 
On    President's    power    to    make 

executive  agreements,  240. 
On  recognition  power,  273. 
On     representative     powers     of 
President,  23. 
Council    of    conciliation,    power    of 
President  to  submit  controversy  to, 
2ig. 
Courtesy,  international,  duty  of,  209, 

212. 
Court  of  Cessation,  France,  on  inter- 
pretation of  treaties,  218. 
Court  of  Claims : 

Jurisdiction   of,  221. 
Suability  of  states  in,  205. 
Court  of  International  Justice.     (See 
Permanent  Court  of   International 
Justice.) 
Court,       Supreme.     (See       Supreme 

Court.) 
Courts  of  claims,  special,  222. 
Courts,    extra-territorial.     (See    Ex- 
tra-territorial courts.) 
Courts,        federal.       (See       Federal 

courts.) 
Courts  martial : 

Jurisdiction  of,   168. 
Not    affected     by    constitutional 
limitations,  84. 
Courts  of  United  States: 

Bound   by   arbitral    awards,    174, 
245- 


Bound  by  written  law,  174. 
Can      not      make      international 

agreements,  234. 
Constitutional  powers  of,  96. 
Determination  of  citizenship  by, 

278. 
Decisions  do  not  affect  interna- 
tional responsibility,  18. 
Do  not  investigate  political  ques- 
tions, 172,  269. 
Duty  to  apply  Acts  of  Congress, 

351. 
Duty    to    apply    reservations    to 

treaty,  253. 
Duty  to  apply  treaties,  172,  257. 
Enforcement  of  executive  agree- 
ments, 236,  242. 
Establishment  of,  required  by  in- 
ternational law,  14. 
Foreign  relations  powers  of,  266, 

267. 
Observance   of   executive   agree- 
ments, 239. 
Observance  of  international  law, 

170. 
Power  to  meet  international  re- 
sponsibilities,  158. 
Recognition    of    termination    of 

treaty,  256. 
Recognition  of  territorial  accre- 
tions, 273.     (See  also  Court  of 
Claims,     Federal    courts.     Su- 
preme Court.) 
Courts,    Prize.     (See    Prize   courts.) 
Crandall,  S.  B. : 

On    Congressional    initiative    of 

treaties,  248. 
On  duty  to  know  treaty  power 

of  foreign  states,  41. 
On  negotiators  of  treaties,  249. 
Crawford,  Secretary  of  the  Treasury, 

on  power   of  recognition,  272. 
Criminal   judgments,   not    executable 

in  foreign  courts,   189. 
Criminal      jurisdiction      of      federal 

courts.     (See    Federal    courts.) 
Crown,  British,  powers  of,  143. 
Cuba,  dispatch  of  troops  to,  by  Presi- 
dent, 227.     (See  also  Treaties.) 
Cuban  insurgents,  status  of,  i73- 
Cullom,  Shelby  E.,  Senator  from  Illi- 
nois, on  arbitration  treaties,  112, 


386      THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


Cushing,  Caleb,  Attorney-General: 
On  duty  of  Congress  to  execute 

treaties,  63 
On    President's   power   of   direc- 
tion, 317. 
On   President's    power  to   deter- 
mine   rank   of    diplomatic   offi- 
cers, 324. 
Czar's  ambassador,  case  of,  178. 

Dana,  H.  W.,  on  obligation  of  Con- 
gress under  treaties,  63. 
Davis,  acting  Secretary  of  State,  on 
methods  of  presenting  international 
claims,  23. 
Davis,   Judge   Advocate   General,    on 

use  of  militia,  308. 
Declaration  of  London.     (See  Trea- 
ties.) 
Declaration    of    Paris.     (See    Trea- 
ties.) 
Declaration  of  War.     (See  War.) 
Declaratory    judgments     on    bound- 
aries, 213. 
De  Facto  Government : 

Treaty  making  power  of,  57. 
Unofficial   reception    of   missions 
from,  35. 
Delegate    distinguished    from    repre- 
sentative, 318. 
Delegation      of      legislative      power. 
(See       Constitution       of      United 
States.) 
Democracies : 

Capacity  to  conduct  foreign   re- 
lations, 365. 
Dependence  on  law,  370. 
Denial  of  justice,  152,  170. 
Denunciation  of  treaty.     (See  Trea- 
ties.) 
Department    of    State.     (See    State, 

department  of.) 
Derby,  Lord,  on  obligation  of  guar- 
antee treaty,  214. 
Destruction  of  enemy  property,  299. 
De  Tocqueville,  Alexis,  on  control  of 

foreign   relations,  365. 
Dicey,  E.  V.,  on  constitutional  under- 
standings, 369. 
Dillon,    French    consul,    case   of,    17, 
55-56,  79,  81,  116, 


Diplomatic     relations,     grounds     for 

breaking,  20. 
Diplomatic   service,   appointments   to, 

325,  335. 
Diplomatic  agent: 

Appointment  of,  316,  328,  329. 
Position  compatible  with  judicial 
or  legislative  office,  316. 
Diplomatic     agreements,     243.     (See 

also  Executive  agreements.) 
Diplomatic    etiquette,    breach    of,    in 

Senate  amendment  to  treaty,  45. 
Diplomatic   immunities,   79,    162,    168, 

173,  177- 
Diplomatic  instructions,  168. 
Diplomatic  mission : 

By  naval  officers,  297. 
Self  constituted,  forbidden,  34. 
Diplomatic  officers: 

Communicate    only    with    execu- 
tive, 29. 
Communications    to    people    im- 
proper, 29. 
Duty  to  exchange,  209. 
Grades    established    by    interna- 
tional law,  323. 
Immunities  of,  79,  162,   163,   168, 

173,   177- 
International      law      applied      in 

cases  affecting,  171. 
Jurisdiction    in     cases    affecting, 

170,  202. 
Nature   of,  318. 
Ofifenses   against,    punished,    179, 

180. 
Power   to   determine    grades   of, 

324. 
Power  to  determine  occasion  for 

appointing,  326. 
Powers     fixed    by    international 

law.  14. 
Protection  of,  by  President,  194. 
Reception    of,   political   question, 

172. 
Unofficial  reception  of,   from  de 

facto  government,  35. 
Diplomatic  pressure,  power  to  bring, 

293- 
Diplomatic     protection     of     citizens 

abroad,  15,  16. 


INDEX. 


387 


Disarmament.     (See  Armament  limi- 
tation.) 

Discovery,     acquisition     of     territory 
by,  274. 

Display  of   force,  294. 

Domestic   affairs   distinguished   from 
foreign  affairs,   150,  263,  264. 

Dominions,  British  self  governing: 
Foreign    relations   power   of,    16. 
Representation  in  League  of  Na- 
tions, 16. 

Drago  doctrine,  153. 

Draft    acts,    constitutionality    of,   85, 
94.     (See  also  Acts  of  Congress.) 

Dubois,   Dutch  minister,   case  of,  79, 
162. 

Due  diligence,  152,  176,  177. 

Due  Process  of  Law.     (See  Consti- 
tution of  United  States.) 

Duponceau,    Peter,    on   obligation   of 
international  law,  58,  358. 

Embargo : 

On  arms  to  insurgents,  183. 
Power  to  authorize,  301. 
Emancipation     proclamation,     consti- 
tutionality of,  86,  300,  350. 
England.     (See  Great  Britain.) 
Exchange  of  Notes,  235.     (See  also 

Executive   agreement.) 
Exchange      of      ratifications.      (See 

Treaties.) 
Exclusion.      (See     Aliens,      Chinese 

Exclusion.) 
Executive : 

Danger  of  excessive  influence  in 

foreign  relations,  5. 
Usually  representative  organ,  26. 
(See   also   President.) 
■   Executive  agreement : 
'  Annexation  of  territory  by,  275. 

Congressional  execution  of,  237. 
Duty  of   President  to   accept   if 

made  within  instructions,  44. 
Extradition  by,  237. 
License  to  trade,  240. 
Military  agreements,  240. 
National    obligations    based    on, 

206. 
Number  claims  settled  by,  244. 
Obligation  of,  234. 
Power  to  make,  54,  237,  243. 


Preliminary    to     treaty    negotia- 
tion, 228,  243. 

Submission  of  private  claims  to 
arbitration  by,  223. 

Termination  of,  236,  262. 

Transit  of  foreign  troops,  242. 

Under    authority    of     Congress, 
los,  374. 

Under  authority  of  Treaty,  106- 
iio,   236. 

Validity  of,  239. 
Executive  agreements  referred  to : 

Boxer  protocol,   1901,  241. 

Canadian  reciprocity,  349. 

Copyrights,  105. 

Costa  Rica,   transisthmian  canal, 
349. 

Gentlemen's       agreement,       with 
Japan,  243. 

Germany,    1918,   armistice,   54. 

Germany,     igi8,    peace    prelimi- 
naries, 54,  216,  241,  349. 

Great    lakes    disarmament,    1817, 
242. 

Guantanamo  lease,   107,  236. 

Hay  open  door  notes,  243. 

Horse-shoe  reef  cession,  236,  349. 

Lansing-Ishii      agreement      with 
Japan,  235,  243. 

Mexican     boundary     marauders, 
187,  217,  242. 

Nicaragua  canal,  349. 

North  Atlantic   Fisheries,  240. 

Patents,  105. 

Postal  service,  105. 

Reciprocity,    106. 

Root-Takahira    agreement     with 
Japan,  235,  243. 

San  Juan  island  occupation,  239. 

Santo    Domingan    customs,    156, 

349- 
Spain,    1898,  peace  preliminaries, 

54,  241,  349. 
Trade  marks,  105. 
Executive   message  as   means   of   in- 
ternational   communication,    36. 
Executive   orders : 

Regulating     military     and     civil 

services,  167. 
Supersede      customary      interna- 
tional law,  174. 
Executive  power,  nature  of,  140. 


388      THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


Executive    regulations    and    instruc- 
tions, how  enforced,   i68. 
Expatriation,  right  of,  277. 
Expulsion.     (See  Aliens,   Alien  ene- 
mies.) 
Extradition : 

Based  on  treaty,  189. 

By   authority    of    President,   190, 

194. 
By  state  authority,  153,  178,  231. 
Constitutionality,  78. 
Jurisdiction     of     federal     courts 

over,   198. 
Political  assassins  liable  to,   189. 
Statutes  regarding,  184. 
Extra-territorial  courts : 
Establishment  of,  15. 
Criminal  jurisdiction  of,  191. 

Family  of  nations : 

Admission  to,  20. 

Organization  of,  214. 

States  members  of,  bound  by  in- 
ternational lawf,  58. 
Federal  Courts : 

Creation  of,  312. 

Decision    on    political    questions, 

173- 

Duty  of  President  to  execute  de- 
cisions of,  346,  347. 

May     not    exercise    non-judicial' 
functions,  312. 

Powers    concurrent    with    Presi- 
dent, 342,  343. 

Power  to  determine  national  ob- 
ligations,     221.      (See      also 
Courts   of   United    States,    Su- 
preme Court.) 
Federal  Courts  jurisdiction: 

Admiralty,  200,  201. 

Cases    afifecting    aliens,    170-171, 
201-203. 

Cases    affecting    diplomatic    offi- 
cers, 202. 

Cases      afifecting     military      and 
naval  officers,  169. 

Cases  brought  by  foreign  states, 

23- 
Claims,  221-222. 
Criminal,   196-199.  355-  356. 
Exclusive,  178. 


Enforcement      of      international 

law,    196. 
Enforcement    of    neutrality,    182. 
Enforcement  of  treaties,  190,  191. 
Extradition,    198. 
Prize,  169,  200,  221. 
Release  of  persons   claiming  im- 
munity under  international  law, 
171. 
Federal  governments : 

Treaty-making     power     may     be 

distributed,    15. 
Unitary  responsibility  of,  15. 
Federalist : 

On    Articles    of    Confederation, 

21. 
On  control   of   foreign   relations, 

364. 
On    inapplicability    of    constitu- 
tional    limitations     to     foreign 
relations  power,  124. 
On   nature    of    foreign    relations 

power,  140,  147. 
On  obligation  of  treaties,  6. 
Field,    David   Dudley,   on   conspiracy 

against  foreign  nations,  185. 
Field,  Justice : 

On  sovereign  powers  of  national 

government,  130. 
On   treaty-making  power,    121. 
Fillmore,  Millard,  President : 

Executive  agreement  by,  237. 
On  war  powers  of  President,  192. 
Finley,  J.  H.,  and  Sanderson,  J.  F., 
on  cooperation  of  departments,  346. 
Fish,  Carl  Russel,  on  control  of  for- 
eign relations,  368. 
Fish,  Hamilton,   Secretary  of   State: 
On  Dillon  case,  17. 
On     relation     of     legislation     to 

treaty,  17. 
On  Senate  amendments  to  treaty, 
47. 
Fisheries : 

Executive    agreement    regarding, 

239- 
Senate    rejection   of   treaty   con- 
cerning, 252. 
State  agreements  on,   232. 
Florida     invasion,     193.     (See     also 
Treaties,  Spain.) 


INDEX. 


389 


Foreign  relations : 

Control  of,  in  American  history, 
366. 

Control    of,    in    European    coun- 
tries, 362. 

Control    of,    under    constitution, 
335,  336. 

Classification     of     agencies     for 
conducting,    317-318. 

Criticism  of  American  system  of 
control,  361. 

Distinguished  from  domestic  af- 
fairs, 150,  263,  264. 

Friction   in  control  of,  360. 

Need  of  concentration  in  control 

of,  363- 
Need  of  popular  control,  362. 
Need  of   Presidential  leadership, 

370. 
Need   of    secrecy    in   control   of, 

364-365- 
Foreign  relations  power : 

Constitutional  point  of  view,  6. 
Danger  of  executive  control,  5- 
Difficulty     of     developing     legal 

theory,  3. 
Dual  position  of,  4- 
Elements  of,  7i- 
Executive  nature  of,  I35- 
International  point  of  view,  4- 
Law  and  understandings  of,  7- 
Legislative  nature  of,  I37- 
National  government,   129. 
Nature  of,  3,  I34,  148. 
Not  judicial,  I35- 
Overlapping  of,  266. 
Political  question,   124. 
Practical  control  of,   148- 
Relation  to  constitutional  and  in- 
ternational law,  4. 
States    of     United     States,     129. 
(See  also  Recognition,  Treaty- 
making  power,  War.) 
Fortification  of  Horseshoe  Reef,  for- 
bidden, 2^. 
Foster,  J.  W. : 

On     congressional     approval     of 

Monroe  Doctrine,  283. 
On  Control  of  Foreign  Relations 
under    Articles    of    Confedera- 
tion, 61. 


On  power  of  President  to  con- 
clude   compromis    of    arbitra- 
tion, 108. 
France : 

Inability  to  execute  claims  treaty, 

66. 
Protest    at    President    Jackson's 

threat  of  reprisals,  36. 
Treaty-making  power,   53.     (See 
also  Treaties,  France.) 
French  spoliation  claims,  82,  219,  222. 
Freund,   Ernst,   on   inapplicability  of 
constitutional    limitations    to     for- 
eign relations  power,  124. 
Frye,  William   P.     (See  William  P. 

Frye.) 
Full  powers,  effect  of  exchange  of, 
42. 

Garfield,    James,    President,    opinion 

on  President's  powers,  157. 
Geffcken,    on    duty    to    know    treaty 

power  of  foreign  states,  41. 
Genet,  Citizen,  French  Minister,  re- 
call of,  29. 
Geneva    arbitration.     (See    Alabama 

case.) 
Gentleman's     agreement.     (See     Ex- 
ecutive agreements.) 
Germany : 

Foreign  relations  power,  16. 
Controversy  on  tonnage  dues,  32. 
Declaration  of  war  against,  289. 
International      responsibility     of 

national  government,   15. 
Preliminaries     of     peace     with. 
(See    Executive    agreements.) 
Termination    of    war    with,    293. 
(See  also  Treaties,  Germany.) 
Gladstone,  W.  E.,  on  nature  of  Brit- 
ish    and     American     constitutions, 

375- 
Goodnow,  Frank  J.: 

On     administrative     powers      in 

American  colonies,   145- 
On  appointment  of  agents,  315- 
On  powers  of  President,  156. 
Gore,   Senator  of   Massachusetts,  on 
appointment  of  diplomatic  officers, 
326. 


390     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


Governments,     recognition     of,     268. 
(See   also    Federal   Governments.) 
Grant,  U.  S.,  President : 

Message  on  cable  landing,  302. 
On      representative      powers     of 

President,  22,  30. 
Veto    of     Congressional    resolu- 
tions    affecting     foreign     rela- 
lations,  30,  278. 
Gray,  Justice : 

On  extradition   power  of   Presi- 
dent,  195. 
On    foreign    relations    power    of 

national  government,   130. 
On  judicial  applicability  of  inter- 
national law,   171. 
On   President's   power   to  permit 
transit  of   troops,  242. 
Great  Britain : 

Creation     of     executive     depart- 
ments, 144. 
Distribution   of   powers,    143-145. 
Nature  of  constitution,  369,  375. 
Powers  of  crown,   143. 
Powers  of  Parliament,  143. 
Treaty-making     power,     53,     55. 
(See      also      British      Empire, 
Treaties.) 
Great  Lakes  Disarmament  agreement. 
(See  Executive  agreements,  Trea- 
ties.) 
Greece,   control   of    foreign    relations 

in,  366. 
Gresham,.  Secretary  of   State: 

On  duty  of  states  to  know   for- 
eign  constitutions,   41. 
On     termination     of     executive 
agreements,  236. 
Grey,  Sir  Edward,  on  American  Con- 
stitution, 361. 
Greytown  incident,  285,  296,  299,  306. 
Griggs,  Attorney-General,  on   treaty- 
making  power,   123. 
Guaranteed     rights     of     individuals. 
(See       Constitution       of       United 
States.) 
Guarantee,  International : 

Interpretation  of,  60,  217. 

Obligation  of,  214. 

Power  to  fulfill,  227. 

Under  League  of  Nations,  115. 


Guarantee  Treaties.     (See  Treaties.) 
Guadaloupe-Hidalgo,       treaty       o  f . 

(See  Treaties,  Mexico.) 
Guano  Islands,  134,  274. 

Habeas  Corpus,   suspension  of    writ, 

85. 
Hague  Conference,   1907,  recommen- 
dations   as    to    future    conferences, 

319. 
Hague  Conventions,   1899,  1907: 
Deposit  of  ratifications,  50. 
Not    applicable   to    third    parties, 

166. 
Reservations   to,  48,   51,  282. 
Hague     Conventions,     1907,    referred 
to: 

I,  Settlement  of  international  dis- 
putes, 108,  no,  210,  228,  334. 

II,  Public    contract    debts,    153, 
223,  247. 

III,  Declaration  of  war,  289. 

IV,  Rules  of  land  warfare,  299. 

V,  Neutrality  on  land,   177,   191, 
196. 

X,    Geneva    Convention    at    Sea, 
i8s. 

XII,  International    Prize    Court, 
no,  \i7,  224,  334. 

XIII,  Neutrality  at  Sea,  177,  191. 
Hague  Permanent  Court  of  Arbitra- 
tion,     bureau,       participation       of 
United  States  in,  228,  334. 

Hall,  James  Parker,  power  of  states 
of    United    States   to   make   agree- 
ments, 230. 
Hall,  W.  E.: 

On  basis  of  international  law,  13. 
On   independence  of   states,  264. 
Hamilton,  Alexander : 

Conception  of  presidency,   145. 
Instructions    for    neutrality    en- 
forcement,  196. 
On  Articles  of  Confederation,  21. 
On  duty  of  Congress  to  execute 

treaties,  354. 
On     inapplicability    of     constitu- 
tional limitations  to  foreign  re- 
lations power,  124. 
On   nature   of    foreign   relations 
power,  136,  147. 


INDEX. 


391 


On    President's    power    to    meet 
international       responsibilities, 
155. 
On  Tripolitan  war,  287. 
Harding,    Warren    Gamaliel,    Presi- 
dent; 
On  Congressional  resolutions  on 

foreign  policy,  278,  281-282. 
On  termination  of  war,  292. 
Harlan,  Justice,   on  power  of   Con- 
gress to  enforce  treaties,   185. 
Harley,  J.  E.,  on  obligation  to  ratify 

treaties,  42. 
Harrison,  Benjamin,  President,  urges 

legislation   to  protect  aliens,  229. 
Hartford  convention,  93. 
Hawaii : 

Congressional  resolution  regard- 
ing, 281. 
Annexation    treaty    rejected    by 
the     Senate,     252.     (See     also 
Treaties,  Hawaii.) 
Hay,  John,  Secretary  of  State: 
Arbitration    treaties,    109. 
Conference     with     Senators     on 

treaty  negotiation,  251. 
On      Senate's     attitude     toward 

treaties,  360. 
Relations   with   President,  323. 
Hay  open  door  notes.     (See  Execu- 
tive agreements.) 
Hay-Pauncefote  Treaty.     (See  Trea- 
ties, Great  Britain.) 
Hayes,   Rutherford   B.,   President : 
On  good  faith  of  treaties,  261. 
On    termination    of    treaty,    257, 

258. 
Veto    of    Chinese   exclusion   act, 
17,  164. 
Hayti,  dispatch  of  troops  to,  by  Presi- 
dent,    227.      (See     also     Treaties, 
Hayti.) 
"  Helvidius  "   (Madison),  136. 
High  seas,  offenses  on,  punished,  180. 
Hill,  David  Jayne : 

On  duty  of  treaty-making  power 
to    consider    attitude    of    Con- 
gress, 356. 
On    necessity    of    separation    of 
powers,  5. 


Hitchcock,  Senator  of  Nebra.ska,  pro- 
posed   reservation     to    Treaty    of 
Versailles,  60. 
Hoadley,  Bishop,  on  power  to  inter- 
pret law,  63. 
Hoar,   Senator  of  Massachusetts,  on 
appointment   of   Senators  to   nego- 
tiate treaties,  251. 
Hobbes,  Thomas,  on  nature  of  inter- 
national law,  210. 
Hohfeld,  W.  M.,  on  fundamental  le- 
gal conceptions,  214. 
Holland,  T.  E.,  definition  of  obliga- 
tion, 213. 
Holmes,  Oliver  Wendell,  Justice : 
On  law-making  power  of  judges, 

64. 
On    power    of    Congress    to    en- 
force treaties,  186. 
On    non-suability    of    sovereign, 

210. 
On  validity  of  treaties,  87-88. 
Holy    Alliance,    sympathy    for   abso- 
lute governments,   14. 
Horseshoe  reef,  cession  of,  2^7. 
House  of  Representatives : 

Advisability    of    participation    in 

treaty-making,  246,  368. 
No  treaty-making  power,  62,  233. 
On  Congressional  resolutions  on 

foreign  policy,  280. 
Resolution   on   obligation   to   ap- 
propriate for  treaty,  6,  226. 
Resolution   on   Maximillian  gov- 
ernment in  Mexico,  33.     (See 
also  Congress.) 
Huerta,    Victoriana,    Defacto    Presi- 
dent of  Mexico : 
Non-recognition  of,  20,  268. 
Note  on  United  States  interven- 
tion, 215. 
Hughes,  Charles  Evans,  on  duty  of 
treaty-making    power    to    consider 
attitude  of  Congress,  356,  357. 
Hungary,    termination   of    war    with, 

293- 
Hyde,  Charles  Cheney,  on  executive 
agreements      submitting      claims 
against  United  States,  244. 


392     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


Immigration  laws.     (See  Act  of  Con- 
gress Aliens.) 
Imperfect    obligation.     (See    Obliga- 
tion.) 
Imperfect  rights  under  international 

law,  8. 
Independence : 

Of  nations,  13,  263,  264. 
Questions  of,  non-justiciable,  29. 
Indians : 

Control  of,  by  Congress,  234. 
Naturalization     of,     277.       (See 
also  Treaties.) 
Insurgency : 

Distinguished   from  belligerency, 

200,  269. 
International      law      applied      in 

cases  affecting,  172. 
Neutrality  laws  applied  to,  200. 
Recognition  of,  political  question, 
172,  268,  269, 
Insurgents : 

Acts    in   behalf   of,   violation   of 

neutrality  laws,  182. 
Embargo  on  arms  to,  183. 
Internment  of,   196. 
Insurrection  against  foreign  govern- 
ments, punished,  183. 
International  administration,  247. 
International    agencies,    creation    of, 

334. 
International    agreements,    power    of 
states  to  make,  230-232.     (See  also 
Executive  agreements.  Treaties.) 
International  claims.     (See  Claims.) 
International  conferences : 

Nature  of  delegates  to,  318. 
Participation   in,  authorized,  228, 

334- 
Presidential  participation  in,  for- 
bidden,    325,     328,     335.     (See 
also  Hague  Conferences.) 
International    cooperation,    duty    of, 

209. 
International  court,  determination  of 
national  obligations  by,  222.  (See 
also  Hague  Permanent  Court  of 
Arbitration,  International  Prize 
Court,  Permanent  Court  of  Inter- 
national Justice.) 


International    court    of    claims,    pro- 
posal for,  224-225. 
International  law : 

Acquisition    of    territory    under, 

134.   173. 
Acts  of  Congress  interpreted  by, 

165. 
Applied  by  courts,  158,  171,  221, 

222. 
Applied  in  claims  settlement,  223. 
Based    on    agreement    of    states, 

208. 
Can  not  be  altered  by  municipal 

law,  16. 
Codified  in  executive  regulations, 

168. 
Conclusiveness  of  acts  and  utter- 
ances of  national  organs  under, 

38. 
Conditions    favoring    observance 

of,  161. 
Confiscation    of    enemy   property 

under,  300. 
Constitution    interpreted    in    ac- 
cordance with,  162. 
Defines  rank  of   diplomatic  offi- 
cers, 318,  323. 
Definition  of,  13,  212. 
Does  not  require  withdrawal  of 

claim,  66. 
Enforcement  of,  176-179,  196. 
Governs  foreign  relations  power, 

4. 
Immunities  under,  79,  242. 
Imposes  limitation  upon  national 

organs,  14. 
Imposes  moral  obligations,  210. 
Interpreted  by  national  organs  in 

first  instance,  213. 
Interpretation    of,   by    President, 

245. 
Limits  of  jurisdiction  defined  by, 

i6s. 
Nature  of,  13. 
Naval  forces  bound  by,  168. 
National  obligations  founded  on, 

206,  209. 
Obligation  of,  58,  212. 
Observance  of,  by  Congress,  162. 
Observance  of,  by  Courts,  170. 


INDEX. 


393 


Observance  of,  by  military  and 
civil  services,  167. 

Observance  of,  by  President,  166. 

Observance  of,  by  treaty-making 
power,  166. 

Offenses  against,  79,   159. 

Offenses  against,  punished  in  fed- 
eral courts,  196,  197. 

Offenses     against,     punished     in 
state  courts,  154,  180. 

Povi^er   to   seize   property   under, 
299. 

President  bound  by,   in   exercise 
of  war  powers,  169. 

Principles  of  state  responsibility, 
151. 

Prohibits  trading  with  the  enemy, 
303. 

Release   from    states   of   persons 
claiming  immunity  under,   171. 

Representative    authority    under, 
15- 

Respect  for.  In  acts  of  Congress, 
163. 

Self  defense  under,  307. 

Sources  of  208. 

Supersedes      British     Order     in 
Council,   170. 

Tacit  acceptance  of,  58. 

Termination  of  treaty  by  opera- 
tion of,  256. 

Treaties  codifying,  247. 

Types  of  cases  in  which  applied, 
159,  171. 

Validity  of  treaty  under,  57. 

Value  of,  for  democracies,  370. 

Written    law    interpreted    in    ac- 
cord  with,  175. 
International   organization : 

Advisability   of   development   of, 
2,70- 

Power  to  participate  in,  228. 

Delegation  of  power  to,  no. 
International      Prison      Commission, 
participation   in,   by  United   States, 
334- 
International    Prize   Court,    no,   224, 
334. 

Constitutionality   of,    117. 
International      responsibilities.     (See 
Responsibilities,    international.) 


International   understandings : 

Do    not   require    withholding   of 

claims,  66. 
Meaning,  7,  8. 
International     unions,     participation 

in,  334. 
Internment : 

Of  alien  enemies,  304.     (See  also 

Alien   enemies.) 
Of  troops — 

Constitutionality,  78. 
Obligation,  209. 
Under    executive     authority, 
196. 
Intervention  distinguished   from  rec- 
ognition, 270. 
Invasion,  power  to  repel,  308. 
Iredell,   Justice,   on   power   to   termi- 
nate voidable  treaties,  256. 
Irish      independence,      congressional 

resolutions  on,  34. 
Italian  lynching  cases,   18,  25,  60,  67, 

206,  225,  229. 
Italy : 

Claims    in    regard    to    Louisiana 

lynchings,  18. 
Withdrawal     of     minister     from 
United    States,   21.     (See   also 
Treaties.) 

Jackson,   Andrew,  President : 

On   enforcement  of   judicial   de- 
cisions, 346. 

On  reprisals,  298. 

Recommendation  of  reprisals,  25, 
36,  66. 

Removal  of  bank  deposits,  317. 

Seeks    Senate    advice    to    treaty, 
250. 
Japan : 

Land  ownership  controversy,  24, 
90,  265. 

Protests  at  anti-alien  legislation, 

30. 
School   children   controversy,  90, 
265.     (See  also  Treaties.) 
Jay,  John  : 

On  control  of   foreign   relations, 

364- 
On  duty  to  ratify  treaties,  43. 


394     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


On  obligation  of  treaties,  6. 

On    Senate   discretion   in   treaty- 
making,  252. 
Jefiferson,  Thomas : 

Attitude  toward  neutrality  proc- 
lamation, 268. 

Initiation  of  Tripolitan  war,  297. 

On    efifect    of    general    reprisals, 
291. 

On  grades  of  diplomatic  ofBcers, 

324. 
On   nature   of    foreign    relations 

power,  137,   138. 
On   President's   foreign   relations 

powers,  22,  28,  36,  38. 
On    Treaty-making    power,    102, 

123. 
On  Tripolitan  war,  286. 
Johnson,   Andrew,   President,   procla- 
mation    of     termination     of     Civil 
War,  291. 
Jones  merchant  marine  act,  258,  281, 

345- 
Judge  in  own  case,  112,  209-210. 
Judgments,  execution  of  foreign,  189. 
Judges,  law-making  pow'er  of,  63. 
Judiciary.     (See  Courts.) 
Judiciary,   federal,  privileges  and  im- 
munities of,  97.     (See  also  Federal 
courts.) 
Jurisdiction  : 

Armed  forces  to  respect  foreign, 

168. 
International  law  applied  in  cases 

regarding  limits   of,    172. 
Of    federal    courts.     (See    Fed- 
eral courts,  jurisdiction.) 
Justiciable  questions,  211,  212. 
Justinian  Digest,  on  making  of  con- 
tracts, 41. 

Kent,  James,    Chancellor,   on  treaty- 
making  power,  55. 
King  can  do  no  wrong,  210. 
Knox,  Philander  C. : 

On  international  cognizability  of 

Acts  of  Congress.  32. 
On  League  of  Nations  Covenant, 

113. 

Resolution     for     termination     of 
war,   292. 


Kocourek,    on    distinction    of    obliga- 
tion and  responsibility,  214. 
Kossuth  revolution,  36. 
Koszta  case,  285,  306,  309. 

La  Abra  and  Wyle  claims,  223. 
La  Follette  Seaman's  act,  84,  258,  345. 
Land  Warfare,  rules  of,   168. 
Lansdowne,     Lord,     British     foreign 
minister,  on   Senate  amendment  to 
treaty,  45- 
Lansing,  Robert,  Secretary  of  State : 
On  Appam  case,  342. 
On  arming  of  merchant  vessels, 

295. 
On     diplomatic    communications 

to  the  people,  29. 
On    international    responsibilities 
of  representative  organ,  19,  24. 
On  Lansing-Ishii  agreement,  243. 
Lansing-Ishii    agreement.     (See    Ex- 
ecutive agreements.) 
Latin-American    states,    attitude    to- 
ward diplomatic  protection  of  citi- 
zens,  16. 
Law,  relation  to  understandings,  7,  8. 
(See  also  Acts  of  Congress,  Con- 
stitution,   International    law.) 
League  of   Nations : 

Appointment    of    representatives 

in,  333- 
Arbitration   under,   113,   210,  223. 
Article  10,  60,  61,  114,  214,  241. 
Conciliation   by,    219. 
Domestic  affairs  under,  263. 
Exercises    no    legislative    power, 

114. 
Guarantees  under,   115. 
Justiciable   questions   under,   212, 

214. 
Limitation  of  Armament  by,  114. 
Mandates   under,   114. 
Nature  of  delegates  to,  320. 
Permanent     International     Court 
of.     (See     Permanent    court.) 
Powers  of,   113. 
Powers  of   Council,  60. 
Representation  of  British  domin- 
ions in,   16. 
Respect  for  earlier  treaties,   166. 
Settlement  of  disputes  by,  114. 


INDEX. 


395 


Treaties  to  be  concluded  under, 

228. 
Unanimity    required,    113.     (See 
also  Reservations  to  Treaty  of 
Versailles,    Versailles    treaty.) 
Lee,  Attorney-General : 

On  duty  of  diplomatic  ofificers  to 
communicate     with     executive 
only,  29. 
On    foreign    relations    power    of 
Secretary  of   State,  22. 
Legal      obligations.      (See      Obliga- 
tions.) 
Legislation.     (See  Acts  of  Congress, 

State  statutes,  Congress.) 
Legislative  acts,  do  not  afifect  inter- 
national responsibilities,  17. 
Legislative   omissions,    do   not   affect 

international    responsibilities,    17. 
Legislative      power,      delegation     of. 
(See       Constitution       of       United 
States.) 
Legislature,    difficulty    of    exercising 

foreign  relations  power,  7. 
Lenin,  defacto  head  of  Russian  gov- 
ernment,  non-recognition   of,  20. 
Letters  of  marque.     (See  Repristas.) 
Letters    rogatory.     (See    Rogatory.) 
Liability,   synonymous  with  responsi- 
bility, 213,  214. 
Libels     against    foreign     states,    not 
punishable  by  federal  statute,  187, 
188. 
License  to  trade,  240. 
Lincoln,   Abraham,   President: 

Blockade  proclamation  by,   38. 
Extradition    of     Arguelles,     190, 

195,  21"] . 
Recognition  of  civil  war,  288. 
Refusal    to    carry    out    congres- 
sional resolution  on  foreign  af- 
fairs, 281. 
Refusal  to  denounce  treaty,  258. 
Repudiation    of    armistice    made 

by  General  Sherman,  44,  240. 
Use  of   force  to  suppress  rebel- 
lion, 193. 
Lippmann,  Walter,  on  control  of  for- 
eign  relations,   5,   365. 
Liquor    trade    punished,     184.     (See 
also   Constitutional  provisions.) 


Livingston,  Edward : 

On  fulfillment  of  treaties,  4. 
On    President's    power    as    sole 
agent  of  international  commu- 
nication,  28. 
On  President's  power  to  appoint 
diplomatic  agents,  331. 
Locke,  John : 

On      delegation      of      legislative 

power,   104. 
On    nature    of    foreign    relations 
power,   141. 
Lodge,   Henry   Cabot,    Senator    from 
Massachusetts : 
On  personal  meetings  of   Presi- 
dent with  Senate,  371-372. 
On   Presidential   agents,  332. 
On  President's  relations  to  Sen- 
ate     foreign      relations      com- 
mittee, 372. 
On  termination  of  war,  292. 
Proposed    reservations   to   treaty 
of  Versailles,  61. 
Logan,    Dr.    George,    self-constituted 

mission  to  France,  34. 
Logan  act,  22,  34. 

London,  Declaration  of.     (See  Trea- 
ties.) 
London  Naval   Conference,   117,   118. 
London   protocol,    1871.     (See  Trea- 
ties.) 
Louisiana     lynchings.     (See      Italian 

lynching  cases.) 
"Lucius   Crassus"    (Hamilton),   287. 
Lusitania,  warning  in  respect  to,  29. 

Maclay,   William,   Senator: 

On  relation  of  President  to  Sen- 
ate,  361. 
On  Washington's   appearance   in 
Senate,  250. 
McLean,    Justice,    on    discretion    of 
Congress   in   execution   of  treaties, 
66. 
McLemore,       Representative       from 
Texas,  resolution  warning  Ameri- 
cans   from     travelling    on     armed 
merchant  vessels,  279,  281. 
McLeod  case,  18,  59,  161,  180,  229. 
McKinley,   William,    President: 
Initiation  of  Spanish  war,  289. 


396     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


Unofficial    reception    of    mission 
from  South  Africa,  35. 

Recommends       intervention       in 
Cuba,  270. 

Urges  legislation  to  protect  resi- 
dent aliens,  187. 
Madison,  James : 

Attitude  toward  neutrality  proc- 
lamation,  268. 

On  duty  to  ratify  treaties,  43. 

On    nature    of    foreign    relations 
power,  138. 

On    nature    of    executive    power, 

145- 
On   treaty  making,  246. 
Practice  in   recognition,  272. 
Magdalena  Bay  incident,  282. 
Maine,  Sir  Henry  Sumner,  on  Ameri- 
can   attitude    toward    international 
law,  358. 
Mandates,   114. 

Marcy,  William,  Secretary  of  State: 
On    constitutionality    of    treaties, 

81. 
On  Greytown  incident,  306. 
Maritime     law,     power     of     federal 

courts  to  enforce,  200. 
Marshall,  John : 

On  confiscation  of  enemy  prop- 
erty, 300. 
On  power  to  annex  territory,  275. 
On  self-executing  treaties,  207. 
On  extradition  power  of   Presi- 
dent,  194. 
On    interpretation    according    to 

international  law,   165. 
On     representative     powers     of 

President,  21. 
On  resultant  powers  of  national 
government,    133. 
Mason   and    Slidell,   unofficial   recep- 
tion in  England,  35. 
Maximilian    government    in    Mexico, 
Congressional     resolution     on,     33, 
280. 
Meade's  claim,  82. 

Mediation,  power  to  President  to  ac- 
cept offer  of,  219. 
Medley,  D.  J.,  on  beginning  of  cabi- 
net responsibility  in  England,   144. 
Metzger  case,  27,  41. 


Mexican   boundary   commission,    183, 

184. 
Mexican  war,  297. 

Declaration  of,  286. 
Initiation  of,  287,  288. 
Mexico : 

Boundary  marauders.     (See  Ex- 
ecutive agreements.) 
Mobilization       of       troops       on 
border,   296.     (See   also   Trea- 
ties.) 
Migratory  birds.     (See  Acts  of  Con- 
gress, Treaties.) 
Militia: 

Power  of  President  to  call  forth, 

192,  193. 
Use  of,  in  Civil  War,  193. 
Miller,    Justice,    on    power    of    Con- 
gress to  enforce  treaties,  186. 
Miller,  David  Hunter : 

On      unitary      responsibility     of 
British   Empire   under   League 
of  Nations,  16. 
On  reservations  to  treaty,  48. 
Military  agreements,  power  of  Presi- 
dent to  make,  240.     (See  also  Ex- 
ecutive agreements.) 
Miliary  commissions,  jurisdiction  of, 

168. 
Military  forces: 

International      law      applied      in 

cases  affecting,  172. 
President's    power    to    use,    186, 

192. 
Use    of,    by    President    in    Civil 

War,    193. 
Use   of,   regulated   by    Congress, 
167. 
Military  government,  power  to  estab- 
lish, 320-321. 
Military  officers,  appointment  of,  320- 

321. 
Military  services : 

Control  of,  by  courts,  169. 
Observance  of  international  law 
by,  167. 
Ministers.     (See       Diplomatic      offi- 
cers.) 
Modus  Vivendi,  235,  239.     (See  also 
Executive  agreements.) 


INDEX. 


397 


Monroe  Doctrine,  282,  283. 

Congressional    approval   of,   283. 
Use   of    force    in   pursuance   of, 
309. 
Monroe,    James,    President,    appoint- 
ment of  diplomatic  agents,  328. 
Montaigne,  on  Constitutional  changes, 

368. 
Montesquieu,     on     foreign     relations 

power,  142,  363. 
Moore,  John  Bassett: 

On      "  apprehensive      interpreta- 
tion"  of  the  Constitution,  162. 
On  arbitration  treaties,  112. 
On    congressional    delegation    of 
power    to    make    international 
agreements,  374. 
On  constitutional  understandings, 

2,7S- 
On  declaration  of  war,  286. 
On  Greytown  incident,  306. 
On   method   of    settling   interna- 
tional claims,  244. 
On  power  of  recognition,  270. 
On  treaty-making  power,  102. 
Moral      obligations.     (See      Obliga- 
tions.) 
Morgan,  Senator  from  Alabama,  on 
Cuban  intervention  resolution,  271. 
Morris,  Gouverneur : 

Conception  of  Presidency,  145. 
On  power  of  Congress  to  admit 

new  states,  276. 
On  treaty  making,  246. 
Most-favored-nation  clause,  32.    (See 

also  Treaties.) 
Municipal  law : 

Can    not    alter    international    re- 
sponsibilities, 16. 
International  law  applied  as  part 
of,  158,  171,  221,  222. 

National  decisions,  conclusiveness  of 

President's  statements  in  reference 

to.  38- 

National      government      of      United 

States : 

Distribution  of  foreign  relations 

powers,  266. 
Foreign  relations  power  of,  130, 

265,  266. 
International  responsibility  of,  15. 


Power     to     make     international 

agreements,  233. 
Power  to  meet  international  re- 
sponsibilities, 154. 
Responsibility   of,    for   violations 
of  international  law  within  the 
states,  206.     (See  also  Consti- 
tution of  United  States.) 
National   honor,  questions   involving, 

non-justiciable,  211. 
National    obligations.     (See    Obliga- 
tions.) 
Natural  rights,  80. 
Navassa  island,  status  of,  173. 
Naval   officers,   appointment   of,   297, 

320-321. 
Naval  warfare,  rules  of,  168. 
Navigation    rules,    offenses    against, 

punished,   181. 
Navy: 

Use  of,  for  intimidation,  294. 
Use  of,  as  marition  police,  296. 
Necessity: 

Military,     justifies      capture      of 

enemy  property,   299. 
Use  of  self  help  in,  296. 
Negotiation  of  treaties.     (See  Trea- 
ties.) 
Negotiations,  conduct  of,  219. 
Nelidow,  President  of  Second  Hague 
Conference,  on  nature  of  delegates 
to  international  conferences,  320. 
Neutrality: 

Enforcement  by  executive,  196. 
Enforcement   by    federal   courts, 

200. 
International     law      applied      in 

cases  affecting,  172. 
Offenses    against,    punished,    179, 

181. 
Panama  Canal  Zone,  239. 
President's  proclamation  of,  con- 
clusive, 39. 
Proclamation  by  President,  268. 
Proclamation,  effect  of,  199,  200. 
Non-intercourse,  power  to  authorize, 

301.     (See  also  Embargo.) 
Non-justiciable     question,     definition 

of,  211. 
North    Atlantic   fisheries   arbitration, 

on  sovereignty,  215. 
North  Atlantic  fisheries  case,  109. 


398     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


North  Atlantic  fisheries  modus  Vi- 
vendi, 240. 

North  German  Confederation.  (See 
Treaties.) 

Obligations : 

Definition  of,  213. 

Conditions  under  which  they  ex- 
ist, 214. 

Distinguished  from  responsibili- 
ties, 213,  214. 

Responsibility  for  fulfillment, 
152. 

Imperfect,  212. 

Legal  contrasted  wth  moral,  211, 

215- 

Moral,  210. 
National — 

Determination  of,  220-222. 
Difficulty      of      determining, 

209-210. 
Nature  of,  206. 
Power  to  interpret,  215. 
Power  to  perform,  225. 
Presumed  to  be  moral,  211. 
Presumed  to  be  non-justici- 
able, 211. 
Responsibility    for    perform- 
ance of,  205. 
Occupation  of   foreign  territory,  296. 
Ofiice    under    United    States,    incom- 
patibilities of,  316. 
Oil    investments,    diplomatic    discus- 
sion regarding,  301. 
OIney,   Richard,   Secretary  of   State : 
Interpretation    of    Monroe    Doc- 
trine, 39. 
On    obligation    to    indemnify    in- 
jured aliens,  225. 
Opium  trade,  303.     (See   also  Trea- 
ties.) 
Oppenheim,     L.,     on     representative 
organ,  20. 

"Pacificus"   (Hamilton),  136. 
Panama,    recognition    of,   218.     (See 

also  Treaty.) 
Panama  Canal : 

Dispatch  of  troops  to,  227. 
Guarantee  of.  218. 
Senate  rejection  of  treaties  con- 
cerning, 252. 


Panama  Canal  tolls  act,  2~<  163. 

Controversies  concerning,  60,  163, 
165. 
Panama  Canal  Zone,  executive  agree- 
ment regarding,  238,  239. 
Panama    Congress,    appointment    of 

delegates  to,  279,  327. 
Pan-American     Union,     participation 

in,  by  United  States,  334. 
Passport  regulations,  277. 
Patent     agreements.     (See    Acts     of 

Congress.) 
Pennsylvania,     Attorney-General     of, 

on  letters  rogatory,  189. 
Permanent     Court     of     International 
Justice : 
Compulsory  jurisdiction   on  pro- 
tocol, 224. 
Establishment  of,  224. 
Jurisdiction  of,  113,  223,  224. 
Justiciable  questions,  212. 
Perry,     Matthew     C,     Commodore, 

opening  of  Japan,  297. 
Pershing,  John,  General,  punitive  ex- 
pedition to  Mexico,  296. 
Pierce,  Franklin,  President,  on  Grey- 
town  incident  306. 
Pillet,  on  observance  of  international 

law,  358,  359- 
Pine  Island  controversy,  173.  343- 
Pious  Fund  and  case,  65,  108. 
Piracy,   180,  184. 

Defined  by  international  law,  201. 
Suppression  of,  296,  299. 
Phillimore,    Sir   Robert,   on    duty   of 
belligerents      to      establish      prize 
courts,   15. 
Philippines,  independence  of,  253. 
Police  power,  exercise  of,  by  United 

States  in  Panama,  218. 
Policy : 

Power  to  decide  on,  not  aflfected 
by     constitutional     guarantees, 
82. 
Power  to  decide  on,  not  affected 

by  states'  rights,  93. 
Power  to  decide  on,  not  limited 
by  separation  of  powers,  120. 
Pronouncements  on,  by  Presi- 
dent, subject  to  international 
cognizance,  39. 


INDEX. 


399 


Political  questions,  232,  348. 

Acquisition  of  territory,  134. 
Boundary   determination,  274. 
Classification  of,  172. 
Determined  by    political    depart- 
ments, 215. 
Includes   most    foreign    relations 

powers,  124. 
Not    considered    by    courts,    83, 

172,  267,  343. 
Termination  of  treaty,  257. 
Polk,  James  K.,  President : 

Initiation    of   Mexican   war,   297. 
On  effect  of  executive  interpre- 
tation of  treaty,  217. 
On  Mexican  war,  287. 
Pomeroy,  J.  N. : 

On  repelling  invasion,  308. 
On  war  powers  of  President,  285. 
Porto  Ricans,  naturalization  of,  277. 
Postal  agreements.  (See  Acts  of 
Congress,  Executive  agreements.) 
Prescriptive  bays,  recognition  of,  274. 
Presidency: 

Analogy  to  British  Crown,  145. 
Conception  of,   in   Federal   Con- 
vention, 145. 
Development     of     administrative 
powers  of,  146. 
President  of  United  States: 

Agreement  to  urge  foreign  claims 

upon  Congress,  244. 
Bound  by  act  of   Congress  and 

treaty,  341. 
Can  not  acquire  territory  by  con- 
quest, 276. 
Can  not  authorize  reprisals,  298. 
Can  not  be    deprived   of   power 

by  treaty,  119. 
Can  not  confiscate  enemy  prop- 
erty on  land,  299. 
Can    not    determine    obligations 
within  power  of  Congress,  216. 
Can    not    establish    prize    courts, 

221,  321. 
Capacity  to  start  war,  285. 
Classification   of   powers,  235. 
Communications      to      Congress 
subject  to  international  cogni- 
zance, 35. 


Conclusiveness  of  acts  and  utter- 
ances of,  under  international 
law,  38,  58,  59. 

Concurrent  powers  with  Con- 
gress, 340,  341- 

Concurrent  powers  with  federal 
courts,  342,  343. 

Constitutional  basis  of  represent- 
ative powers,  23. 

Constitutional  powers  of,  96. 

Dominance  in  conduct  of  foregn 
relations,   137,  336,  360. 

Duty  of  Congress  to  carry  out 
political   undertakings   of,   349. 

Duty  of  courts  to  follow  politi- 
cal decisions  of,  348. 

Duty  of  treaty-making  power  to 
carry  out  political  undertak- 
ings of,  349- 

Duty  to   enforce  treaties,  352. 

Duty  to  execute  acts  of  Con- 
gress, 350. 

Enforcement  of  executive  agree- 
ments,  236. 

Exclusiveness  of  recognition 
power,  270. 

Extent  of  power  in  making  ar- 
mistices, 241. 

Extent  to  which  he  can  bind  the 
nation,  244. 

Final  authority  in  treaty  denun- 
ciation, 258. 

Foreign  relations  powers  distin- 
guished from  administrative 
powers,  147. 

Foreign  states  may  bring  claims 
before,  24. 

Impeachment  of,  167. 

Independent  of  Congress  in  con- 
ducting  foreign   relations,    149- 
258,   278-281,   341. 
Leadership     in     foreign     affairs, 

149,  366-368. 
Need  of  traditions  for  advance- 
ment to,  373. 
Neutrality  proclamation  by,   199. 
Observance  of  international  law 

by,  166. 
Official  acts  of,  subject  to  inter- 
national cognizance,  25,  28,  35. 
Personal    delivery    of    messages 
by,  371.  372. 


400     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


Practice  in  conducting  foreign 
relations,   136. 

Presumed  to  speak  for  the  na- 
tion, 25,  36,  ZT. 

Privileges  and  immunities  of,  25, 

97- 
Purposes  for  which  he  may  use 

force  abroad,  306. 
Purposes  for  which  he  may  use 

force    in    American    territory, 

193,  194- 

Recognition  of  international  re- 
sponsibilities,  18. 

Recommendation  of  amend- 
ments to   treaty,  254. 

Refusal  to  submit  treaty  to  Sen- 
ate,  254. 

Relations    with    cabinet,    371. 

Relations  with  Congress,  371. 

Relations  with  Congressional 
committees  on   foreign  affairs, 

372. 

Relations      with      Secretary      of 

State,  322.  323. 
Relations  with   Senate,  360,  361- 
Representative  organ,  21,  26. 
Requests  for  Senate  advice  dur- 
ing treaty  negotiations,  250. 
Sole  agency  of  international  com- 
munication, 28. 
Unofficial    reception    of    mission 
from  defacto  governments,  35. 
Use  of  veto  in  defense  of  inter- 
national law,  164. 
War  powers  limited  by  interna- 
tional law,  85-86,   169. 
Why  given  treaty-making  power, 

246. 
Withdrawal  of  treaty  from  Sen- 
ate, 254. 
President,  powers  of,  146. 

Appointment  of  oflficers,  314. 
Appointment        of        diplomatic 

agents,  249,  328,  329- 
Appointment   of    diplomatic   oflfi- 
cers, 325. 
Appointment     of     military     and 

naval  oflficers,  321. 
Appointment   of   peace  missions, 
327. 


Appointment  of  treaty  negotia- 
tors, 119,  249. 

Arming  of  merchant  vessels,  295. 

Cable  landing,  267,  302. 

Commissioning  military  and 
civil  oflficers,  322. 

Conclusion  of  compromis  of  ar- 
bitration, 223. 

Conclusion  of  executive  agree- 
ments, 53,  233-236,  243. 

Confiscation  of  property  in  war, 

85. 

Control  of  foreign  relations,  141, 
266,  267. 

Creation  of  oflfices,  313. 

Denunciation  of  treaties,  259. 

Determination  of  foreign  policy, 
64,  282. 

Determination  of  national  obli- 
gations, 217. 

Determination  of  occasions  for 
using  military  force,   193. 

Direction  of  administration,  141, 
148,  194,  317- 

Direction  of  military  forces,  305. 

Enforcement  of  awards  of  for- 
eign  consuls,   195. 

Enforcement  of  international 
law,  192. 

Enforcement  of  neutrality,  176, 
182. 

Enforcement  of  treaties,  190. 

Exchange  of  ratifications  of 
treaty,  52,  254. 

Extradition  under   treaty,   194. 

Extradition   without   treaty,    195. 

Formal  amends,  229. 

Fulfillment  of  guarantee,  227. 

Government  of  unorganized  ter- 
ritory, 320-321. 

Initiate  treaties,  248. 

Interim  appointments,  119. 

Internment  of  foreign  troops, 
196. 

Interpretation      of      constitution, 

347. 
Interpretation     of     international 

law,  245. 
Interpretation    of    national    and 

state  laws,  40. 
Interpretation  of  treaty,  47.  245. 


INDEX. 


dOl 


Meeting  of  international  respon- 
sibilities,  ICO,  158. 
Movement  of  military  and  naval 
forces,   119,   186,  227,  304,  309- 
Movement  of  military  and  naval 

forces  abroad,  296. 
Movement  of   military  forces  in 

United  States  territory,  193. 
Negotiation  of  treaties,  44,  249. 
Organization  of  army  and  navy, 

320. 
Proclamation  of  treaties,  255. 
Radio  censorship,  196. 
Ratification  of  treaties,  52,  254. 
Reception  of  diplomatic  officers, 

242. 
Recognition,  39,  268. 
Recognition  of  citizenship,  277. 
Recognition    of    termination    of 
treaty     by     international     law, 
256.  , 

Recognition    of    termmation    of 

war,  291,  293. 
Recognition  of  territorial  acqui- 
sitions, 274. 
Recognition  of  war,  286. 
Removal  of  officers,  146,  I94.  3i6, 

322. 
Repudiation  of  acts  by  subordi- 
nates, ultra  vires,  40,  44- 
Return      of      deserting     seamen 

under  treaty,  195. 
Signature  of  treaties,  251. 
Suppression    of    boundary    inci- 
dents,  184. 
Treaty  making,  261-262. 
Veto,    119. 
Presidential  agent,  not  an  officer  of 

United  States,  333- 
Presidential    agreements.     (See    Ex- 
ecutive agreements.) 
Prize  courts : 

Apply  international  law,  19.  i7i. 

221. 

Cases  settled  by,  221. 

Duty  of,  299. 

Duty  of  belligerents  to  establish, 

15.   173- 

Effect   of   municipal   law   limita- 
tions upon,  19- 

Power  to  establish,  221,  314- 


Prize      jurisdiction.      (See      Federal 
courts,  Jurisdiction.) 

Prizes,     restoration     of,     182,     200. 
(See  also  Acts  of  Congress.) 

Proclamation     of      neutrality.     (See 
Neutrality.) 

Proclamation  of  treaties.    (See  Trea- 
ties.) 

Property,   private,  power  to   author- 
ize seizure,  85,  298. 

Protectorates,  recognition   of,  268. 
Protocol,   235.     (See   also  Executive 

agreements.) 
Public  vessels,   international  law   ap- 
plied in  cases  affecting,  172. 
Privateering,  power  to  authorize,  298. 

Radio,  power  to  regulate,  196,  302. 
Ratification    of    treaty.     (See    Trea- 
ties.) 
Rawle,  William : 

On  abrogation  of  treaties,  260. 
On  powers  of  President,   149- 
On  termination  of  treaties,  283. 
Reasonable  doubt,  acts  must  be  un- 
constitutional beyond,  348. 
Rebus  sic  stantibus,  256. 
Reciprocity  treaties,  Senate  rejection 
of,      252.     (See      also      Executive 
agreements.   Treaties.) 
Recognition : 

By    subordinate    does    not    bind 

President,  40. 
Distinguished   from  intervention, 

270. 
Exclusiveness       of       President's 

power,  39,  270. 
Grounds  for  withdrawing,  20. 
Method  of,  268. 

Of    foreign    states    and    govern- 
ments, 39.  268-273. 
Of  termination  of  war,  291,  293. 
Of  war,  286,  289. 
Political  question,  172. 
Power  of,  266,  268. 
Relation  of,  to  war,  269. 
Resolutions     on,    by     states     of 

United  States,  265. 
Source  of  power,  I33- 
Reinsch.   Paul    S.,   on   experience  of 
Secretaries  of  State,  373- 


402     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


Removal     power,     316.      (See     also 

President.) 
Renault,     L.,     on     inexpediency     of 

treaty  reservations,  49. 
Reparation : 

By  formal  amends,  229. 

By  punishment  of  individual,  178, 

229. 
By  release  of  prisoner,  229. 
Obligation  of,  153,  209. 
Repentigny  claim,  222. 
Representative      distinguished      from 
Requisition  of  enemy  property,  299. 

delegate,  318. 
Representative  organ  of  government, 
13- 
Attributes  of,  under  international 

law^,   15,  28. 
Constitutional  restrictions  on,  19. 
Duty  of  states  to  maintain,  21. 
Form  of,  26. 
May  be  altered  by  constitutional 

amendment,  26. 
Must   be    free  of   municipal  law 

restrictions,   19. 
President   of    the   United    States 

as,  21. 
Sole  agency  of  international  com- 
munication, 28. 
Reprisals : 

Effect  of,  291. 
Power  to  authorize,  298. 
Res  adjudicata,  64,  235. 
Reservations  to  treaty: 

Express  consent  to,  45. 
Made    at    exchange    of    ratifica- 
tions, 255. 
Made  at  signature,  251. 
Must  be  agreed  to  by  President 

and  Senate,  46. 
Not    permitted,    to    Declarations 

of  Paris  and  London,  49. 
Number  of  cases  of,  253. 
Occasions  for  presenting,  48,  50. 
Refusal  of   foreign   state  to   ac- 
cept, 254,  255. 
Senate's   power,  253. 
Statements  of  policy  in,  282. 
Tacit  consent  to,  48. 


Reservations  to  treaty  referred  to : 
African  Slave  Trade  general  act, 

51. 

Algeciras  convention,  282. 
Corea-United  States,  1882,  331. 
France-United    States,    1801,    50, 

25s. 

Great  Britain-United  States,  1794, 
Jay  treaty,  253. 

Hague  Conventions,  51,  iii,  282. 

Monroe  Doctrine,  282. 

Sanitary  convention,  1903,  52. 

Spain-United   States,   1819,  Flor- 
ida purchase,  49. 

Spain-United  States,  1898,  253. 
Reservations  to  Versailles  treaty  pro- 
posed by  United  States  Senate, 

49.  107- 

Appointment    of    representatives 
in  League  of  Nations,   119. 

Constitutionality,    119. 

Power  to  use  military  force,  119. 

Presidential  agents,  333. 

Withdrawal  from  League  of  Na- 
tions, 34,    107,    119- 
Reserved  powers  of  states  of  United 
States : 

Classification  of,  89. 

Constitutional  understandings  re- 
garding, 86. 

Do  not  limit  treaty-making  power, 

89. 
Responsibilities : 

Distinguished    from    obligations, 

213-214. 
Powers  not  deducible  from,  154. 
Social    conditions    under    which 

they  exist,  214. 
Responsibilities,    international,    I3- 
Based  on  consent,  58. 
Classification  of,  213. 
Definition  of,  213. 
For    domestic    disturbances,    264. 
Duty   of    government    organs    to 

meet,  358. 
Instrumentalities  for  meeting,  de- 
fined by  treaty,  99. 
Meeting    of,    distinguished    from 

making  agreements,  62. 
Not   affected   by   municipal   law, 

16. 


INDEX. 


403 


Of  President  under  international 

law,  27. 
Power  of  Congress  to  meet,  100, 

159. 
Power    of    courts    to    meet,    100, 

158. 
Power  of  President  to  meet,  100, 

157- 
Power  of  states  of  United  States 

to  meet,  153. 
Power    of    treaty-making    power 

to  meet,  160. 
Power   to   meet,    not   affected   by 

constitutional      limitations,      78, 

87,  99- 
Power  to  meet,  not  an  inherent 

executive    power,    155. 
Power  to  meet  through  enforce- 
ment of  international  law,  176. 
Principles  of,   151. 
Recognition    of,    by    Continental 

Congress,  18. 
States  judges  of  their  own,  14. 
To  perform  national  obligations, 

205. 
Understandings    with    respect    to, 

9; 

Unitary  under  international  law, 
15,  25. 
Resultant    powers    of    national    gov- 
ernment,  132. 
Retaliation,    power  to  authorize,   301. 
Retorsion,  power  to  authorize,  301. 
Rio    Grande,    boundary    commission, 

184. 
Richards,    Acting   Attorney   General, 
on  power  to  land  cables,  267,  302. 
Rivier,  on  the  representative  organ,  20. 
Rogatory,    letters,    not    applicable    in 

criminal  cases,   189. 
Roman  law,  ogligations  under,  213. 
Roosevelt,  Theodore : 

Dispatch  of  troops,  296. 
Influence  in  foreign  affars,  323. 
Interpretation   of   Panama   Canal 

Guarantee,  217,  218. 
Negotiation    of    Algeciras    Con- 
vention, 136. 
On    anarchy    as    offense    against 

international  law,   188. 
On     executive     agreement     with 
Santo   Domingo,  237. 


On  President's  powers,  156. 

Submission  of  Pious  funds  case 
to  arbitration,  108. 

Unofficial  reception  of  mission 
from   South  Africa,  35. 

Urged  legislation  to  protect  resi- 
dent aliens,  187. 

Use  of  navy,  294. 

Withdrawal     of     treaties     from 
Senate,  109,  254. 
Root,  Elihu : 

Arbitration  treaties,  109,  112. 

On  constitutionality  of  interna- 
tional prize  court,  117. 

On  obligation  of  Congress  under 
treaties,  62. 

On  responsibility  of  national 
government  for  protecting  resi- 
dent aliens,  18. 

On  value  of  international  law  for 
democracies,  370. 
Root-Takahira  agreement.     (See  Ex- 
ecutive  agreements.) 
Russell,  Lord  John : 

On  constitutional  understandings, 

369- 
On  effect  of  Blockade  proclama- 
tion, 38. 
Russia : 

Claim    to    jurisdiction    in    Bering 

Sea,  174. 
Treaty    protecting    citizens    sug- 
gested by  Congress,  248.     (See 
also  Treaties.) 
Russo-Japanese   war,   commencement 
^f,  290. 

Sackville,   Lord,   British  minister,   re- 
call of,  29. 

Salmong,  John  W.,  on  responsibility, 
214. 

Salisbury,     Lord,     British     Premier, 
discussion  of  Monroe  Doctrine,  39. 

Salutes : 

Amends  by,  229. 
Exchange  of,  168,  209. 

Sanitary     Convention.     (See     Trea- 
ties.) 

San  Juan   Island,  agreement  regard- 
ing, 239. 


404     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


Santo  Domingo : 

Annexation  treaty,  Senate  rejec- 
tion, 252. 
Executive    agreement    regarding, 
156,  238. 
Scott,  James  Brown,  on   reservation 

to  treaties,  51. 
Scrap  of  Paper  incident,  212,  261. 
Seamen : 

May  be  compelled  to  fulfill  con- 
tracts, 84. 
Return  of  deserting,  195. 
Secrecy.      (See   Foreign   relations.) 
Secret  agents,  power  to  appoint,  330. 
Secretary  of  State: 

Appointment  of,  322. 
Conferences     with     Senators     on 

treaty  negotiation,  251. 
Recognition  of  citizenship,  277. 
Removal  of,  322. 
Relations  with  President,  323. 
Secretary    of    War,   power   to    settle 

certain  claims,  220. 
Sedition   against    foreign    sovereigns, 

punishable  in  states,  178. 
Self  executing  treaties.     (See  Trea- 
ties.) 
Sequestration  of  enemy  property,  299. 
Senate: 

Advice  to  treaty  negotiation,  250. 
Conception   of,   in    Federal   Con- 
vention, 145. 
Consent   to    ratification    of   trea- 
ties, 252. 
Consent    to    treaty    reservations, 

50. 
Duty  to  carry  out  preliminaries 

of  peace,  241. 
Duty  to   ratify  treaty  in   accord 
with  executive  agreement,  243. 
Duty  to   ratify   treaty   in   accord 

with  instructions,  43. 
Influence  in  foreign  affairs,  368. 
Participation  in  appointment  of 
treaty  negotiators,  249,  330,  331. 
Participation  in  claims  settle- 
ment, 224. 
Participation     in     compromis     of 

arbitration,   223. 
Participation    in    instruction    of 

treaty  negotiators,   250. 
Power  in  treaty  making,  261. 


Power  to  determine  national  ob- 
ligations, 216. 

Number  of  treaty  reservations 
by,  253. 

Protests  against  Presidential 
agents,  330-332. 

Refusal  to  reject  or  consent  to 
treaty,  253. 

Rejection  of  treaties,  44,  238,  252. 

Relations  with  President,  360, 
361. 

Reservation,  amendment  and  in- 
terpretation of  treaty,  253. 

Veto  of  treaties,  149. 

Why  given  participation  in  treaty 
making,  93. 

Withdrawal   of    treaty   from,   by 
President,  254. 
Senate  Committee  on  Foreign  Rela- 
tions : 

Conferences  with  President,  250, 
372. 

On  arbitration  treaties,  iii. 

On  cooperation  of  departments, 
346. 

On  denunciation  of  treaties,   259. 

On  executive  nature  of  foreign 
relations   power,    137. 

On  overlapping  of  powers  of  de- 
partments, 339. 

On  power  of  recognition,  273. 

On  power  of  states  of  United 
States  in  foreign  relations,  265. 

On  Presidential  agents,  119,  249, 
330,  2>22. 

On  reason  for  President's  initia- 
tive in  treaty  making,  248. 

On      representative     powers      of 
President,  21. 
Senate  resolutions : 

Foreign  acquisition  of  neighbor- 
ing naval  bases,  282. 

Interpretation  of  treaty  by,  in- 
effective, 33,  34,  46. 

Visit  and  search  of  vessels,  281. 
Senators: 

Appointment  as  treaty  negotia- 
tors, 251,  316,  333. 

Conference  of  Secretary  of  State 
with,  on  treaty  negotiations, 
251. 


INDEX. 


405 


Separation  of  Powers : 

Does    not    limit   power   to    make 
decisions     on     national     policy, 
120. 
Limitations  derived  from,  95. 
Limitations      on      treaty-making 

power,  loi. 
Most      important      limitation     on 

foreign  relations  power,  125. 
Origin  of  theory,  172. 
Should    not    be    too    rigidly    ap- 
plied, 126.     (See  also  Constitu- 
tion of  United  States.) 
Seward,    William    H.,    Secretary    of 
State : 
On    House    resolutions    affecting 

foreign  policy,  33,  280. 
On  practice  in  international  com- 
munication, 23. 
On  termination  of  foreign  wars, 
291. 
Sherman,  William  T.,  General,  armis- 
tice by,   repudiated,   44.   240. 
Sherman,  John,  on  Presidential  agents, 

249,  332. 
Sherman  anti-trust  act,  165. 
Signature  of  treaty.     (See  Treaties.) 
Slave  trade,  suppression  of,  184,  295. 

(See  also  Treaties.) 
Slavery,    prohibition    of,    in    accord 
with    international    law,    80.     (See 
also        Constitutional        provisions, 
Emancipation  Proclamation.) 
South  Africa,  unofficial  reception  of 

mission  from,  35. 
South    African    war,    termination   of, 

291. 
Sovereign  powers,  not  vested  in  na- 
tional government,  130-132. 
Sovereigns : 

International  law  applied  in  cases 

affecting,  171. 
Sedition    against,    punishable    in 
states,   178. 
Sovereignty: 

Nature  of,  134. 

Questions   involving,  non-justici- 
able, 214. 
Theory  of,  divided,  72. 
Spain : 

Controversies    on    obligation    of 
preliminaries  of  peace,  54. 


Controversies   on   ratification   of 
treaties,     42,     43.     (See     also 
Treaties.) 
Spanish- American   war : 

Effect  on  control  of   foreign  re- 
lations in  United  States,  367. 
Initiation  of,  289. 
Preliminaries      of      peace.     (See 
Executive  agreements.) 
Spanish    colonial    wars,    termination 

of,  291. 
Spanish-Peruvian     war,     termination 

of,  291. 
Spanish    treaty    claims    commission, 

222,  245. 
Spooner,   Senator  of  Wisconsin : 

On   control   of    foreign   relations, 

365. 
On  Department  of  State,  322. 
On   executive   nature  of   foreign 
relations    power,   137. 
Stanton,   Commodore,   recognition  of 
Brazilian   insurgents,   repudiated  by 
President,  40. 
Stare  Decisis,  application  to  interna- 
tional decisions,  64,  65. 
State,  Department  of: 

Agency  of  communication,  21. 
Negotiation  by,  219. 
Organization  of,  322. 
State,  Secretary  of.     (See  Secretary 

of  State.) 
States  of  the  United  States : 

Admission  to  the  union,  275,  276. 
Anti-alien  legislation  by,  90-91. 
Consent    to    alienation    of    terri- 
tory, 89. 
Consent  to  treaty,  55. 
Contracts  by,  205,  232. 
Exempt  from  taxation,  86. 
Guaranteed  rights  of,  76. 
Jurisdiction    of    courts,    in    cases 

affecting  aliens,  202. 
Limitations  on  powers  of,  73. 
Limitations   on    foreign    relations 

powers,  265. 
No  extradition  power,  190,  231. 
No   power    to    perform    national 

obligations,  205. 
Not    internationally    responsible, 

25- 
Not  judge  in  own  case,  210. 


406      THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


Officers  of,  may  not  be  burdened 
with  national  duties.  312. 

Release  from,  of  persons  claim- 
ing immunity  under  interna- 
tional law,  161,  171.  180,  229. 

Remedies  by,  will  not  relieve  na- 
tional government  of  responsi- 
bility, 206. 

Republican  form  of  government 
guaranteed,  86. 

Resolutions  by,  recommending 
recognition,    265. 

Suability  of,  205,  206. 

Territory  of,  guaranteed,  86. 

Territory  of,  may  not  be  ceded, 
88.      (See  also  Constitution  of 
United  States.) 
States  of  the  United  States,  powers: 

Agreement  making.  230-232,  261. 

Appontment  of  militia  officers, 
321. 

Criminal  legislation  concurrent 
with  Congress,  178. 

Diplomatic,  264. 

Enforcement  of  international 
law,   177- 

Foreign  relations,  129. 

Meeting  of  international  respon- 
sibilities, 153. 

Protection  of  resident  aliens,  179. 

Regulation  of  alien  property 
holding,  91. 

Reserved,  75. 

War,  264. 
States  of  the  United  States,  statutes: 

Publication,  30. 

Subject  to  international  cogni- 
zance, 30,  40. 

Void  if  contrary  to  treaty,  91,  161, 

175. 
When  effective,  30,   161. 
States'   rights,   limit   national  powers, 

86. 
States,  sovereign : 

Bound  by  international  law,  55- 
Consent  to  suit  in  justiciable  con- 
troversies, 211. 
Definition    of.    15. 
May  bring  suits  in  United  States 

courts,   23. 
Non-suability.  210. 
Offenses  against  punished,    182. 


Recognition  of,  20,  268. 
Recognition  of,  political  question, 
172. 
Stone,   Senator  of  Missouri,     on  war 

powers  of  Congress,  290. 
Story,   Joseph,   Justice : 

On   criminal   jurisdiction   of    fed- 
eral courts,  198. 
On  duty  of  Congress  to  establish 

inferior   federal  courts,  357. 
On  interpretation  of  treaties,  218. 
On    President's   discretion,   309. 
On    President's    power    to    carry 
out  awards  of  foreign  consuls, 

19s. 
On  treaty-making  power,  234. 
Stowell,   Lord,  on   initiation  of  war, 

288. 
Submarine    cable    convention.       (See 

Treaties.) 
Succession,  law  of,  80. 
Sumner,  Charles,  Senator  from  Mas- 
sachusetts : 
On  denunciation   of   treaty,  259. 
Resolution     on     proposed     Santo 
Domingan  annexation,  279. 
Supreme  Court  of  the  United  States: 
Appellate  jurisdiction  of,   203. 
Effect  of  decisions  as  precedents, 

347- 
Original  jurisdiction  of,  202. 

Suspension  of  arms,  240. 
Sutherland,   George: 

On  arbitration  treaties,  112. 
On  war  powers  of  President,  84, 
170. 
Switzerland : 

Controversy  on  application  of 
most-favored-nation   clause,   33, 

228. 

International  responsibility  of  na- 
tional  government,    15. 

Official  commentary  on  League  of 
Nations  covenant,  60,  ii4-  (See 
also  Treaties.) 

Taft,  William  Howard: 
Dispatch  of  troops.  296. 
On  arbitration  treaties,  in,  112. 
On  denunciation  of  treaties,  259- 
On  executive  agreements,   238. 


INDEX. 


407 


On  powers  of  President,  156. 
On  power  to  interpret  laws,  64. 
On    President's    power    to   deter- 
mine  foreign  policy,   64,   245. 
On    President's    power    to    direct 

forces,   119,  308. 
On    responsibility    of    nation    for 
protection  of  resident  aliens,  25. 
Proclamation   of   Japanese   treaty 

of  191 1,  45- 
Urges  legislation  to  protect  resi- 
dent aliens,  187. 
Withdrawal     of     treaties     from 
Senate,  254. 
Taney,  Chief  Justice : 

On    foreign    relations    powers    of 

national  government,  134. 
On    nature    of    foreign    relations 

powers,   131. 
On   powers    of    states   of    United 
States  to  make  agreements,  230. 
Taylor,  Zachary,  President,  communi- 
cation  on    Kossuth   revolution   pro- 
tested by  Austria,  25,  36. 
Tazewell,   Senator  from  Virginia,  on 
President's  power  to  appoint  diplo- 
matic agents,  330. 
Telegraph,  power  to  regulate,  302. 
Termination  of  executive  agreements. 

(See  Executive  agreements.) 
Termination  of  Treaties.     (See  Trea- 
ties.) 
Termination  of  war.    (See  War.) 
Territory : 

Annexation  of,  political  question, 

172. 
Conquest  of,  276. 
International   law   applied   to   de- 
termine   rights    in    newly    ac- 
quired, 172. 
Methods  of  acquiring,  273-275. 
Military  government  of,  constitu- 
tional, 83,  85. 
Power  to  annex,  83,  130,  274,  275. 
Power  to  cede,  226. 
Recognition   of    acquisitions,    268, 

274. 
Source  of  power  to  annex,  133. 
Texas  annexation  treaty,  Senate  rejec- 
tion, 252. 


Thayer,  W.  R.,  on  relations  of  Presi- 
dent and  Secretary  of  State,  323. 
Tinoca,  de   facto  President  of   Costa 

Rica,  non-recognition  of,  20,  268. 
Trademark    agreements.      (See    Acts 

of   Congress.) 
Treaties : 

Abrogation  of,  260-261. 

Amendments   to,   46. 

Annexation  of  territory  by,  274- 

275- 
Applied  by  courts,    162,   172,  222. 
Appointment    of    negotiators    of, 

249- 

Authorizing  executive  and  judi- 
cial action  190. 

Authorizing  executive  agreements, 
106,  236. 

Authorizing  extradition  by  state 
authority,   178. 

Can  not  deprive  Congress  of 
powers,  lOi. 

Can  not  deprive  courts  of  inher- 
ent powers,  116. 

Can  not  vest  courts  with  non- 
judicial  functions,  117. 

Capture  of  property  under  author- 
ity of,  299. 

Change  in  character  of,  during 
19th  century,   206-207. 

Claims  settled  by,  244- 

Classification    of    subject    matter, 

247.  . 

Conclusion    of,    may    be   national 

obligation,  228. 
Conflict    with    acts    of    Congress, 

164,   175.  305,  345- 
Conflict  with  another  treaty,   166, 

175.  352. 

Conflict  with  customary  interna- 
tional law,  174. 

Confliet   with   state  law,   91,    I75- 

Congress  deprived  of  full  discre- 
tion by,  103. 

Congressional  execution  of,  103, 
226,   354-356. 

Courts  can  not  make,  234. 

Delegation  of  judicial  power  by, 
112,   116. 

Delegation  of  power  by,  to  inter- 
national organs,   no,   112. 


408     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


Delegation  of  power  by,  to  Presi- 
dent, to  conclude  compromis  of 
arbitration,   io8. 

Denunciation  on  notice,  258. 

Deposit  of  ratifications,  50. 

Designating  special  organs  to  exe- 
cute, 26,  99. 

Duty  to  ratify,  42,  252,  253. 

Exchange  of  ratifications,  48,  50, 
52,  254. 

Imposes  moral  obligation,  210. 

Initiation  of,  248. 

International  obligation  of,  not 
affected  by  congressional  abro- 
gation, 260,  261. 

Interpretation  of,  63,   112,  218. 

Interpretation    by    President,    25, 

24s. 

Interpretation  of  law  by,  11 5-1 16. 

Interpretation  of,  requires  full 
treaty  power,  48,  65,  217. 

Interpretation  by  national  organs 
in  first  instance,  213. 

Interpreted  in  accord  with  inter- 
national law,  166. 

Interpretive  resolutions  by  Houses 
of  Congress,  253. 

Making  of,  distinguished  from 
meeting  responsibilities,  62. 

May  deal  with  subjects  in  power 
of    Congress,    102,    103,   344. 

Most-favored-nation  clause,  ap- 
plication to  Switzerland,  46. 

Must  deal  with  subjects  of  inter- 
national scope,   123. 

National  claims  submitted  to  ar- 
bitration under,  223. 

National  obligations  based  on,  206. 

Negotiation  under  authority  of 
President,  44. 

Never  declared  unconstitutional, 
80,  247. 

Number  concluded  by  United 
States,  246,  247. 

2\ umber  rejected  by  Senate,  252. 

Objection  of  foreign  states  to 
Senate  amendment,  44. 

Obligation  of,  6,  59,  212. 

Obligation  of  Congress  to  enforce, 
191. 

Obligation  to  ratify,  42. 


Offenses  against,  punished,  179, 
184-186. 

Offenses  created  by,  may  be  pun- 
ished, 79. 

Organs  for  interpreting,  210. 

Power  of  Congress  to  pass  laws 
in  execution  of,  87. 

Power  to  conclude,  under  national 
constitution,  53. 

President's  refusal  to  submit  to 
Senate,  254. 

Proclamation  of,  255. 

Protocols  postponing  exchange  of 
ratifications,  47. 

Provisions  dependent  on  state  leg- 
islation, 26,  30,  31. 

Publication  of,  31. 

Qualified  ratification  of,  must  be 
consented  to,  45. 

Ratification  of,  42,  52,  252,  254. 

Recognition  of,  in  act  of  Con- 
gress,  163. 

Rejection  of,  by  foreign  govern- 
ment, 255. 

Repudiation  of,  6,  260. 

Requiring  legislative  execution, 
208. 

Requiring   subsequent  treaty,  353. 

Reservations  to.  (See  Reserva- 
tions to  Treaty.) 

Respect  for  earlier  treaties  by, 
166. 

Secrecy  in  negotiation  of,  354. 

Secret,  255. 

Self  executing,  207,  228,  353. 

Senate  participation  in  interpreta- 
tion of,  48,  217. 

Senate  refusal  to  ratify,  44,  238. 

Settlement  of  controversy  by,  219. 

Signature  of,  48,  249,  251. 

States  of  United  States  forbidden 
to  make,  230. 

Steps  in  conclusion  of,  41,  42. 

Subject  matter  of,  246. 

Supreme  law  of  land,  158,  255. 

Termination  of,  30,    107,  256-262, 

35  T.  352- 
Termination  of,  political  question, 

172. 
Ultra  7'ires  provisions,   53-56. 
Validity    if    made    by    de    facto 

government,  57- 


INDEX. 


409 


Validity  if  made  under  necessity, 
57,  89. 

Voidable,  256. 

War,  effect  on,  256. 

When  efifective,  31,  42,  52,  255. 

Withdrawal      from      Senate     by 
President,  245.     (See  also  Ex- 
ecutive agreements.) 
Treaties  concluded  by  United  States, 
referred  to : 

Austria,  1921,  termination  of  war, 
293. 

Cherokee  Indians,  1790,  43. 

China,   1868   (Burlingame),  immi- 
gration, 164,  257,  345. 
1894,    protection    of    citizens, 
191. 

Colombia,    1846,    guarantee,    217, 
227,  247,  296. 

Corea,   1882,  commerce,  249,  303, 

331- 
Cuba,    1903,   protection,   217,  296. 

1903,  reciprocity,   106. 
Denmark,  1917,  cession  of  Virgin 

Islands,  252. 
France,    1778,    alliance,    247,    256, 

257- 
1778,  commerce,  90,   166. 
1788,  consuls,  43. 
1801,    commerce    and   claims, 

45,  47,  50,  219,  220,  345- 
1803,  Lousiana  purchase,  102. 
1831,  claims,  66,  219,  220. 

1852,  consuls,  56. 

1853,  alien  land  ownership,  31, 
90. 

1898,  commercial   reciprocity, 

33- 

1919,  proposed  guarantee,  253. 
Germany,   1844,  commerce,  102. 

1 92 1,  termination  of  war,  293. 
Great  Britain,  1783,  peace,  31, 
162,   191. 

1794  (Jay),  commerce  and 
claims,  62,  102,  226,  255, 
266.  352. 

1803  (King-Hawksbury),  pro- 
posed boundary,  44. 

1814  (Ghent),  peace,  326, 
327. 


1817,  Great    Lakes    disarma- 
ment, 39,  242,  247,  258. 

1818,  fisheries,  215. 

1842      (Webster-Ashburton), 

Maine    boundary,     55,    89, 

220,  226,  227,  230. 
1846,   Oregon   boundary,   220. 
1850,    Isthmian   canal    (Clay- 

ton-Bulwer),  25,  45,  47,  48, 

65,  255,  258. 
1854,  use  of  state  canals,  31, 

90. 
1871     (Washington),    neutral 

duties,  177. 
1892,   Bering   sea  arbitration, 

164. 

1900  (Hay-Pauncefote),  pro- 
posed Isthmian  canal,  45. 

1901  (Hay-Pauncefote),  Isth- 
mian canal,    163,  258. 

1908,  arbitration,  47,  99,   109, 
210-21 I. 

1910,  claims,  224. 

191 1,  Canadian  boundary  com- 
mission,  183,  219. 

1918,  migratory  birds,  87,  185. 
Hawaii,    1884,    reciprocity,   47. 
Hayti,      1915,     intervention     and 

guarantee,  217,  247,  297. 
Hungary,     1921,     termination    of 

war,  293. 
Indian  tribes,  43,  234. 
Italy,  1871,  extradition  and  rights 

of  citizens,  67,  351. 
Japan,    191 1,    rights    of    citizens, 

45,  90. 
Mexico,    1848    (Guadaloupe    Hi- 
dalgo),   peace,    25,    47,   48, 
65,    109,  217,  220,   255. 
1889,    boundary    commission, 
184. 
North      German      Confederation, 

1868,  naturalization,  46. 
Panama,     1903,     guarantee,     247, 

352. 
Russia,   1832,  commerce,  259. 

1867,    Alaska    purchase,    102, 

245- 
Santo    Domingo,     1907,    customs 
administration,  238. 


410     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


Spain,  1795,  embargoes,  245. 
1819,   Florida  purchase,  49. 
1898,  peace,  46,  220,  251. 
Switzerland,    1855,    most-favored- 
nation    clause,   33,   46,   48,    228, 
260. 
Turkey,  1874,  extradition,  47. 
Treaties,  general,  referred  to : 

Algeciras     convention,     Morocco, 

50,  136,  282. 
Alien  rights,  89. 
Arbitration.        (See     Arbitration 

treaties.) 
Arms  trade,  354,  355- 
Bering  sea  sealing,  185,  228. 
Brussels  general  act,    1890,  Afri- 
can slave  trade,  45,  50,  51,  191, 
227. 
Bryan,  peace,  219,  247. 
Commercial,  228. 
Consular  jurisdiction,  185. 
Declaration  of  London,  maritime 

capture,  49. 
Declaration    of     Paris,    maritime 

warfare,  47,  49,  245,  298. 
Geneva    convention,    Red    Cross, 

185,  191,  247. 
Guarantee,  247,  253. 
Hague  conventions.     (See  Hague 

conventions.) 
International   administration,   247. 
International   organization,   228. 
League     of     Nations     Covenant. 
(See  League  of  Nations  Cove- 
nant.) 
London,  187 1,  obligation  of  treat- 
ties,  212. 
Maritime  salvage,   185. 
Pan-American    pecuniary    claims, 

19 ID,  99,  222. 
Radio  telegraph,   185. 
Sanitary  convention,   1903,   52. 
Submarine    cable,    1885,    47,    185, 

216,  228. 
Vereiniging,    1902,    end    of    Boer 

war,  35. 
Versailles.  (See       Versailles, 

treaty  of.) 
Vienna,  1815.  classification  of  dip- 
lomatic officers,  14. 
White  slavery,  1904,  87. 


Treaty-making  power,  53,  55,  233,  246. 
Can  not  be  delegated,  104. 
Can     not     bind     its     own     future 

action,  352. 
Capacity     to    meet     international 

responsibilities,   160. 
Concurrent   powers   of    Congress, 

3447345- 

Constitutional  limitations  upon, 
121,  248,  351. 

Constitutional   provisions  on,   55. 

Creation  of   offices  by,   312. 

Delegation  to  international  organ, 
III. 

Denunciation    of    treaty   by,    259. 

Duty  to  carry  out  executive  agree- 
ments, 349. 

Duty  of  Congress  to  carry  out 
acts  of,  353-356. 

Duty  of  courts  to  enforce  acts  of, 

351- 
Duty  of  President  to  enforce  acts 

of,  352. 
Limited  by  guarantees  of  private 

right,  80. 
Limited  by  separation  of  powers, 

loi. 
Limited  by  states'  rights,  55,  88. 
May  create  courts,   104. 
Observance    of    international    law 

by,  166. 
Opinion  of  text  writers  on,  92. 
Should    respect    states'     reserved 

powers,  93. 
Suggested   modification    of,    368. 
Termination    of    voidable    treaty 

by,  256. 
Under  Articles  of  Confederation, 
246. 
Tripolitan  war,  286,  297. 
Trumbull  case  (Chile  vs.  U.  S.,  1892), 

27,  41- 
Tucker,    H.    St.    George,    on   conflicts 
of  state  legislation  with  treaty,  162. 
Turkey.     (See  Treaties.) 

Ulpian,  on  making  of  contract,  41. 

Understandings,  relation  to  law,  7,  8. 
(See  also  Constitutional  under- 
standings, International  understand- 
ings.) 


INDEX. 


411 


United  States.  (See  National  govern- 
ment, States  of  United  States,  Con- 
stitution, House  of  Representa- 
tives, Senate,  Congress,  President, 
Courts.) 
Vattel,  E. : 

On  imperfect  obligations,  8. 

On    legal   and   moral    obligations, 

211. 
On     obligation     of     international 

law,  67. 
On  organ  to  interpret  treaty,  210. 
Venezuela  claims  cases,   log. 
Vera  Cruz  incident,  205,  297,  299. 
Versailles  treaty : 

Compatibility    with    preliminaries 

of  peace,  54. 
Deposit  of  ratifications,  50. 
League     of      Nations     Covenant. 
(See  League  of  Nations  Cove- 
nant.) 
Obligation  to  ratify,  216. 
Reservation    proposed    by    China, 

49- 
Reservations  proposed  by  Senate. 
(See  Reservations  to  treaty  of 
Versailles.) 
Senate  rejection  of,  252. 
Veto.     (See  President.) 
Vicarious  responsibility,  152. 
Vice  President,  participation  in  cabi- 
net meetings,  371. 
Vienna,  Treaty  of.     (See  Treaties.) 
Villa,  pursuit  of,  193,  296. 
Virgin   islands,   annexation   treaty  re- 
jected by  Senate,  252. 
Vital    interests,     questions    involving, 
non-justiciable,  211. 

Walsh,     T.    J.,     Senator   from    Mon- 
tana, on  termination  of  treaty,   108. 
War: 

Causation  of,  284,  285. 
Declaration      authorizes      general 

reprisals,   299. 
Declaration,    effect    of,   256,    297, 

298,  299. 
Declaration,  power,  227,  266,  286, 

290. 
Declaration,  prohibits  trading  with 
enemy,  303. 


Definition,  284. 

Fact  of,   subject  to  international 

cognizance,  39. 
International  law  applied  in  cases 

affecting,  172. 
Obligation  to  make,  under  treaty, 

62. 
Power  to  make,  284. 
Powers,   subject  to  constitutional 

limitations,   84. 
Recognition  of,  39,  268,  286,  289. 
Termination  of,  39,  268,  290,  291, 

293- 
Termination  of,  political  question, 

173.       (See    also    Belligerency, 

Civil  war.) 
War  of  1812,  declaration  of,  286. 
Wars  referred  to : 

American  civil,  288,  291. 
Mexican,  286-288,  297. 
Russo-Japanese,  290. 
South  .African,  291. 
Spanish-American,  289,  367. 
Spanish  Colonial,  291. 
Spanish-Peruvian,  291. 
Tripolitan,   286,   297. 
War  of  18 12,  286. 
World  war,  280,  293. 
Declaration,  proposed  amendment, 

regarding,  93. 
Washington,  George,   President : 

Appointment  of  diplomatic  agents, 

328,  331. 
Farewell  address,  67,  283. 
On   control   of   foreign   relations, 

364. 
On  international  favors,  67. 
On  treaty-making  power,  5,  233. 
On  power  of  House  of  Represen- 
tatives   in    treaty    making,    62, 
246. 
Neutrality  proclamation,   196. 
Personal   discussion   with   Senate, 

361. 
Practice  in  recognition,  272. 
Recognition  of  France,  136. 
Seeks  Senate  advice  to  treaty,  250. 
Washington,  treaty  of.     (See  Treaties, 

Great  Britain.) 
Water  Witch  incident,  298. 


412     THE  CONTROL  OF  AMERICAN  FOREIGN  RELATIONS. 


Webster,  Daniel: 

On    congressional    resolutions    on 

foreign  affairs,  279. 
On    duty    of    states    to    maintain 

courts,  14. 
On  obligation  of  international  law, 

58. 
On  treaty-making  power,  55. 
Webster-Ashburton       treaty.         (See 

Treaties,  Great  Britain.) 
Westlake,  John,  on  recognition,  20. 
White   slavery.      (See  Acts   of    Con- 
gress, Treaties.) 
Wickersham,    George,    Attorney   Gen- 
eral, on  repelling  invasion,  308. 
William  P.  Frye,  case  of,  24. 
Willoughby,  W.  W. : 

On  adoption  of  international  law 

by  United  States,  59. 
On  denunciation  of  treaty,  260. 
On  extradition  power,   195. 
On  Neagle  case,  157. 
On  power  to  annex  territory,  275. 
On    power    of    states    to    make 

agreements,  232. 
On    power    to   meet   international 

responsibilities,   154. 
On  President's  powers,  146. 
On  sovereign  powers  of  national 

government,   131. 
On  treaty-making  power,  56. 
On  war  powers  of  President,  169, 
170. 
Wilson,  G.  G.,  and  Tucker,  G.  F. : 
Definition  of  state,   15. 
Powers  of   Department  of  State, 
22. 
Wilson,   James,    proposal    for   treaty- 
making  power,  246. 
Wilson,    Woodrow : 

Dispatch  of  troops,  296. 
Fourteenth  point  of,  241. 
On    American   entry   into   World 
War,  289. 


On  experience  of  Presidents,  S73- 

On  legal  and  moral  obligations, 
211. 

On  nature  of  delegates  to  League 
of  Nations  Assembly,  320. 

On  obligation  of  preliminaries  of 
peace,  54. 

On  Panama  Canal  Tolls  contro- 
versy, 60,  163. 

On  power  to  arm  merchant  ves- 
sels, 295. 

On  President's  leadership  in  for- 
eign relations,  367. 

On  relation  of  President  to  Con- 
gress, 366. 

On  termination  of  treaty,  108. 

On  unitary  responsibility  of  Brit- 
ish Empire  in  League  of  Na- 
tions, 16. 

Personal  conference  with  Senate 
Committee  on  Foreign  Rela- 
tions, 372. 

Refusal  to  carry  out  congressional 
resolution  on  foreign  affairs, 
280. 

Removal  of  Secretary  of  State, 
322. 

Sympathy  for  democratic  form 
of  government,  14. 

Termination  of  treaties,  258. 

Veto  of   war  termination  resolu- 
tion,   292. 
Woodbury,  Justice,  on  jurisdiction  of 

federal  courts,  199. 
World  War: 

American  entry  into,  289. 

Declaration  of,  280. 

Preliminaries  of  peace.     (See  Ex- 
ecutive Agreement.) 
Termination   of,   293.      (See   also 
Versailles  treaty.) 

Yrujo,  Spanish  minister,  case  of,  29. 


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